Conduct of Emergency Guardianship Hearing; Limitations on Emergency Guardianship

  1. Law
  2. Georgia Code
  3. Guardian and Ward
  4. Guardians of Adults
  5. Procedure for Appointment
  6. Conduct of Emergency Guardianship Hearing; Limitations on Emergency Guardianship

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  1. The court shall conduct the emergency guardianship hearing, at the time and date set forth in its order, to determine whether there is clear and convincing evidence of the need for an emergency guardianship in light of the evidence taken at the hearing. In addition to the evidence at the hearing, the court may consider the evaluation report and any response filed by the proposed ward. The burden of proof shall be upon the petitioner. Upon the consent of the petitioner and the proposed ward, the court may grant a continuance of the case for a period not to exceed 30 days.
  2. If the court at the emergency hearing finds that an emergency guardianship is necessary, the court shall order the emergency guardianship; provided, however, that:
    1. Any emergency guardian shall have only those powers and duties specifically enumerated in the letters of emergency guardianship and the powers and duties shall not exceed those absolutely necessary to respond to the immediate threatened risk to the ward;
    2. The court may order the emergency guardian to make any report the court requires; and
    3. The emergency guardianship shall terminate on the earliest of:
      1. The court's removal of the emergency guardian, with or without cause;
      2. The effective date of the appointment of a guardian;
      3. Unless otherwise specified in the order of dismissal, the dismissal of a petition for appointment of a guardian;
      4. The date specified for the termination in the order appointing the emergency guardian;
      5. Sixty days from the date of appointment of the emergency guardian, provided that the court had jurisdiction to issue such order under paragraph (1) of Code Section 29-11-12; or
      6. Ninety days from the date of appointment of the emergency guardian, provided that the court had jurisdiction to issue such order under paragraph (2) or (3) of Code Section 29-11-12.

(Code 1981, §29-4-16, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2019, p. 693, § 8/HB 70.)

The 2019 amendment, effective January 1, 2020, deleted "or" at the end of subparagraph (b)(3)(D); added the proviso at the end of subparagraph (b)(3)(E); and added subparagraph (b)(3)(F).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-8 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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