Prerequisite Judicial Finding of Probable Cause; Notice; Petition; Evaluations; Reporting Requirements

1. Law
2. Georgia Code
3. Guardian and Ward
4. Guardians of Adults
5. Procedure for Appointment
6. Prerequisite Judicial Finding of Probable Cause; Notice; Petition; Evaluations; Reporting Requirements

1. Upon the filing of a petition for guardianship of a proposed ward, the court shall review the petition and the affidavit, if any, and determine whether there is probable cause to believe that the proposed ward is in need of a guardian within the meaning of Code Section 29-4-1.
2. If the court determines that there is no probable cause to believe that the proposed ward is in need of a guardian, the court shall dismiss the petition and provide the proposed ward with a copy of the petition, the affidavit, if any, and the order dismissing the petition.
3. If the court determines that there is probable cause to believe that the proposed ward is in need of a guardian:
   1. The court shall immediately notify the proposed ward of the proceedings by service of all pleadings on the proposed ward, which notice shall:
      1. Be served personally on the proposed ward by an officer of the court and shall not be served by mail;
      2. Inform the proposed ward that a petition has been filed to have a guardian appointed for the proposed ward, that the proposed ward has the right to attend any hearing that is held, and that, if a guardian is appointed, the proposed ward may lose important rights to control the management of the proposed ward's person;
      3. Inform the proposed ward of the place and time at which the proposed ward shall submit to the evaluation provided for by subsection (d) of this Code section; and
      4. Inform the proposed ward of the proposed ward's right to independent legal counsel and that the court shall appoint counsel within two days of service unless the proposed ward indicates that he or she has retained counsel in that time frame;
   2. Upon notice that the proposed ward has retained legal counsel or upon the appointment of legal counsel by the court, the court shall furnish legal counsel with a copy of the petition, the affidavit, if any, and the order for evaluation provided for by subsection (d) of this Code section;
   3. The court shall give notice of the petition by first-class mail to all adult individuals and other persons who are named in the petition pursuant to the requirements of paragraphs (7), (8), and (9) of subsection (b) of Code Section 29-4-10; and
   4. On the motion of any interested person or on the court's own motion, the court shall determine whether to appoint a guardian ad litem.
4. 1. If the petition is not dismissed under subsection (b) of this Code section, the court shall appoint an evaluating physician who shall be a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or licensed clinical social worker or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker authorized to practice in that federal facility, other than the physician, psychologist, or licensed clinical social worker who completed the affidavit attached to the petition pursuant to subsection (c) of Code Section 29-4-10.
   2. When evaluating the proposed ward, the physician, psychologist, or licensed clinical social worker shall explain the purpose of the evaluation to the proposed ward. The proposed ward may remain silent. Any statements made by the proposed ward during the evaluation shall be privileged and shall be inadmissable as evidence in any proceeding other than a proceeding under this chapter. The proposed ward's legal counsel shall have the right to be present but shall not participate in the evaluation.
   3. The evaluation shall be conducted with as little interference with the proposed ward's activities as possible. The evaluation shall take place at the place and time set in the notice to the proposed ward and the legal counsel and the time set shall not be sooner than the fifth day after the service of notice on the proposed ward. The court, however, shall have the exclusive power to change the place and time of the examination at any time upon reasonable notice being given to the proposed ward and to his or her legal counsel. If the proposed ward fails to appear, the court may order that the proposed ward be taken directly to and from a medical facility or the office of the physician, psychologist, or licensed clinical social worker for purposes of evaluation only. The evaluation shall be conducted during the normal business hours of the facility or office and the proposed ward shall not be detained in the facility or office overnight. The evaluation may include, but not be limited to:
      1. A self-report from the proposed ward, if possible;
      2. Questions and observations of the proposed ward to assess the functional abilities of the proposed ward;
      3. A review of the records for the proposed ward including, but not limited to, medical records, medication charts, and other available records;
      4. An assessment of cultural factors and language barriers that may impact the proposed ward's abilities and living environment; and
      5. All other factors the evaluator determines to be appropriate to the evaluation.
   4. A written report shall be filed with the court no later than seven days after the evaluation and the court shall serve a copy of the report by first-class mail upon the proposed ward and the proposed ward's legal counsel and, if any, the guardian ad litem.
   5. The report shall be signed under oath by the physician, psychologist, or licensed clinical social worker and shall:
      1. State the circumstances and duration of the evaluation, including a summary of questions or tests utilized, and the elements of the evaluation;
      2. List all persons and other sources of information consulted in evaluating the proposed ward;
      3. Describe the proposed ward's mental and physical state and condition, including all observed facts considered by the physician or psychologist or licensed clinical social worker;
      4. Describe the overall social condition of the proposed ward, including support, care, education, and well-being; and
      5. Describe the needs of the proposed ward and their foreseeable duration.
   6. The proposed ward's legal counsel may file a written response to the evaluation, provided the response is filed no later than the date of the commencement of the hearing. The response may include, but is not limited to, independent evaluations, affidavits of individuals with personal knowledge of the proposed ward, and a statement of applicable law.

(Code 1981, §29-4-11, enacted by Ga. L. 2004, p. 161, § 1.)

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Code 1933, § 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

Requiring notice is to protect public and alleged incompetent.

- The object of former Code 1933, § 49-604 in requiring notice to relatives was not to confer any right upon them, but was solely for the purpose of protecting public and interest of alleged incompetent. Phillips v. Phillips, 202 Ga. 776, 44 S.E.2d 767 (1947) (decided under former Code 1933, § 49-604).

Relations notified are not parties in their own behalf but are notified for benefit of person to be considered and given an opportunity to be heard in that person's behalf. They are not summoned by process; no judgment can be rendered against them merely because of such notice; and there is no provision for taxing costs against them. Slaughter v. Heath, 127 Ga. 747, 57 S.E. 69, 27 L.R.A. (n.s.) 1 (1907) (decided under former Code 1895, § 2573).

Names and addresses of adult children of ward.

- Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386, 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Stepchildren are not included in "children."

- A ward's stepchildren are not children under the guardianship statute, nor are they next of kin, and because there were individuals in this case related to the ward by blood, who were not notified of the guardianship proceedings, the appointment of the guardian was void. Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding.

- Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532, 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Grandson did not have the right to intervene in proceedings by children for the appointment of a guardian for their mother. White v. Heard, 225 Ga. App. 351, 484 S.E.2d 12 (1997) (decided under former O.C.G.A. § 29-5-6).

Mental incompetent is entitled to hearing in county of residence.

- Where person files application for appointment of guardian of allegedly mentally incompetent state resident, the latter is entitled to have application for guardianship heard in probate court of county of his or her residence. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Where representative of alleged incompetent files plea to court's jurisdiction on ground that alleged incompetent is resident of another county, the plea should be sustained if it is determined that alleged incompetent is, in fact and in law, a resident of the other county. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Requirements for petition at trial.

- Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695, 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

Court where alleged insane person lives may have jurisdiction.

- The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited.

- For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737, 164 S.E.2d 836 (1968); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604);(decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119, aff'd, 221 Ga. 486, 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Evaluation required after initial probable cause found.

- Probate court, having initially determined that there was probable cause to warrant filing of a petition for guardianship or conservatorship, erred in dismissing the petition without requiring an evaluation of the proposed ward as mandated by O.C.G.A. §§ 29-4-11 and29-5-11; the ward's refusal to speak to the evaluator without counsel present meant the evaluation should have been rescheduled. In re Estate of Davis, 330 Ga. App. 97, 766 S.E.2d 550 (2014).

Notice to nearest relatives of alleged mental incompetent is insufficient. Edwards v. Lampkin, 221 Ga. 486, 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

When notice is insufficient, all proceedings under section are void.

- When court of ordinary was without jurisdiction due to insufficiency of notice, all subsequent proceedings in cause brought under former Code 1933, § 49-604, including appointment of guardian, were void. Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119, aff'd, 221 Ga. 486, 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

Cited in Jones v. Jones, 191 Ga. App. 401, 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876, 525 S.E.2d 409 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident.

- A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91, Georgia's Long Arm Statute; and (3) the criteria and procedures of O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated.

- Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement.

- The requirement of former O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 23, 41, 53.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 72 et seq.

C.J.S.

- 56 C.J.S., Mental Health, § 24 et seq. 57 C.J.S., Mental Health, § 125 et seq.

ALR.

- May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227; 175 A.L.R. 1324.

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338.

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541.

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364.

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247.

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

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