Petition for Appointment of Emergency Guardian; Requirements of Petition

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  2. Georgia Code
  3. Guardian and Ward
  4. Guardians of Adults
  5. Procedure for Appointment
  6. Petition for Appointment of Emergency Guardian; Requirements of Petition

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  1. Any interested person, including the proposed ward, may file a petition for the appointment of an emergency guardian. Such petition shall be filed in the court of the county in which:
    1. The proposed ward is domiciled;
    2. The proposed ward is found; or
    3. Jurisdiction is otherwise proper under Code Section 29-11-12.
  2. The petition for appointment of an emergency guardian shall set forth:
    1. A statement of the facts upon which the court's jurisdiction is based;
    2. The name, address, and county of domicile of the proposed ward, if known;
    3. The name, address, and county of domicile of the petitioner and the petitioner's relationship to the proposed ward;
    4. A statement of the reasons the emergency guardianship is sought, including the facts that support the need for a guardian and the facts that establish an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed;
    5. The reasons why compliance with the procedures of Code Sections 29-4-10 through 29-4-13 is not appropriate in the circumstances;
    6. The fact that no other person appears to have authority and willingness to act in the circumstances, whether under a power of attorney, trust, or otherwise; and
    7. The reason for any omission in the petition for appointment of emergency guardian in the event full particulars are lacking.
  3. The petition shall state whether a petition for the appointment of a guardian or conservator has been filed or is being filed in conjunction with the petition for the appointment of an emergency guardian.
    1. The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a 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 facility.
    2. Any affidavit shall be based on personal knowledge and shall state that the affiant has examined the proposed ward within 15 days prior to the filing of the petition and that, based on the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the proposed ward's health or safety and that there is an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.
    3. In addition to stating the facts that support the claim of the need for an emergency guardianship, the affidavit shall state the foreseeable duration of the emergency guardianship and may set forth the affiant's opinion as to any other limitations on the emergency guardianship.

(Code 1981, §29-4-14, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 7/HB 70.)

The 2019 amendment, effective January 1, 2020, substituted the present provisions of subsection (a) for the former provisions, which read: "Any interested person, including the proposed ward, may file a petition for the appointment of an emergency guardian. The petition shall be filed in the court of the county in which the proposed ward is domiciled or is found."

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-9 are included in the annotations for this Code section.

Right to jury trial.

- If the appointment of an emergency guardian under former O.C.G.A. § 29-5-8 is only for that period of time pending the outcome either of the emergency guardianship hearing or the permanent guardianship hearing, the order would not be final or appealable to a jury in superior court, and hence would not be subject to Ga. L. 1986, p. 982, affecting procedures before the probate court in certain counties; on the other hand, if the petition before the probate court sought only an emergency guardian for a period not to exceed 45 days, as in a situation where immediate surgical or other medical consent was required for a seriously ill person proposed to be a ward, an order granting such a petition, which would leave nothing further to be decided by the probate court, would be final, appealable to a superior court jury, and hence would be a "civil case" under the 1986 Act, giving a party a right to demand a jury trial. 1986 Op. Att'y Gen. No. U86-18 (decided under former O.C.G.A. § 29-5-8).


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