Powers and Rights of Guardian; Appointment of Guardian Ad Litem; Coordination and Cooperation With Conservator or Others

1. Law
2. Georgia Code
3. Guardian and Ward
4. Guardians of Adults
5. Protection of the Ward
6. Powers and Rights of Guardian; Appointment of Guardian Ad Litem; Coordination and Cooperation With Conservator or Others

1. Unless inconsistent with the terms of any court order relating to the guardianship, a guardian may:
   1. Take custody of the person of the ward and establish the ward's place of dwelling within this state;
   2. Subject to Chapters 9, 20, and 36 of Title 31 and any other pertinent law, give any consents or approvals that may be necessary for medical or other professional care, counsel, treatment, or service for the ward;
   3. Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the ward in the name of or on behalf of the ward; and
   4. Exercise those other powers reasonably necessary to provide adequately for the support, care, education, health, and welfare of the ward.
2. At the time of the appointment of the guardian or at any time thereafter, any of the following powers may be specifically granted by the court to the guardian upon such notice, if any, as the court shall determine, provided that no disposition of the ward's property shall be made without the involvement of a conservator, if any:
   1. To establish the ward's place of dwelling outside this state;
   2. To change the jurisdiction of the guardianship to another county in this state that is the county of the ward's place of dwelling, pursuant to Code Section 29-4-80;
   3. To change the domicile of the ward to the ward's or the guardian's place of dwelling, in the determination of which the court shall consider the tax ramifications and succession and inheritance rights of the ward and other parties;
   4. To bring an action for the divorce of the ward based on any of the grounds listed in Code Section 19-5-3, except on the ground that the marriage is irretrievably broken;
   5. To consent to the adoption of the ward;
   6. To receive reasonable compensation from the estate of the ward for services rendered to the ward; and
   7. If there is no conservator, to disclaim or renounce any property or interest in property of the ward in accordance with the provisions of Code Section 53-1-20.
3. Before granting any of the powers described in subsection (b) of this Code section, the court shall appoint a guardian ad litem for the ward.
4. In granting any of the powers described in subsection (b) of this Code section, the court shall consider the property rights of the ward and the views of the conservator, if any, or, if there is no conservator, of others who have custody of the ward's property.
5. In performing any of the acts described in this Code section, the guardian shall act in coordination and cooperation with the conservator or, if there is no conservator, with others who have custody of the ward's property.

(Code 1981, §29-4-23, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142.)

Cross references.

- Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1838, former Code 1895, § 2571, and former Code 1933, § 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, are included in the annotations for this Code section.

Guardian empowered to appoint agent.

- Guardian had power to appoint agent to act for guardian during absence in confederate army, and any act of agent within scope of agent's authority would be as valid as that of guardian. Tarpley v. McWhorter, 56 Ga. 410 (1876) (decided under former Code 1873, § 1838).

Guardian is entitled to possession of ward's effects.

- Guardian of person and property of a lunatic is entitled to retain possession and control of ward's effects so long as guardianship continues; and to deprive the guardian of such possession and control before ward is restored to sanity, it is necessary that the guardian's letters be revoked and another guardian appointed. Bonner v. Evans, 89 Ga. 656, 15 S.E. 906 (1892) (decided under prior law).

Commingling of funds and failure to account is breach.

- Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se breach of the bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776, 189 S.E. 59 (1936) (decided under former Code 1933, § 49-603).

Guardian cannot maintain divorce proceedings.

- Suit for divorce instituted by guardian in behalf of one who has been adjudicated insane cannot be maintained in this state; the right to bring and prosecute such an action being strictly personal, and not within authority conferred by law upon a guardian. Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947) (decided under former Code 1933, § 49-603).

Father had right to visitation with child over guardian's objection.

- Although a disabled adult child's mother as guardian had authority to exercise the powers reasonably necessary to provide for the child's health and welfare, O.C.G.A. § 29-4-23(a)(4), the child had the right to communicate freely with persons other than the guardian, pursuant to O.C.G.A. § 29-4-20(a)(4). In the absence of any medical or other direct testimony that visitation would have a negative impact on the child, the child's father had the right to visitation with his daughter over the mother's objection. Mitchum v. Manning, 304 Ga. App. 842, 698 S.E.2d 360 (2010).

Probate court had the authority to establish a set visitation schedule between an adult mentally disabled ward and the ward's father in order to protect the ward's rights and best interests under the broad powers granted in O.C.G.A. §§ 15-9-30(a),29-4-40, and29-4-41, despite the mother's/guardian's objection to the visitation. In re Estate of Wertzer, 330 Ga. App. 294, 765 S.E.2d 425 (2014).

Proceeding by next friend for waste with proceeding to remove guardian.

- If a next friend suing in behalf of a lunatic can maintain an action for waste committed by the guardian, or recover money in the guardian's hands, it can be done only in connection with a proceeding to remove the guardian and revoke guardianship letters. Bonner v. Evans, 89 Ga. 656, 15 S.E. 906 (1892) (decided under prior law).

Guardian lacked authority to sign arbitration agreement.

- Guardian did not have the authority to sign the arbitration agreement on the resident's behalf because as the guardian's consent to the voluntary arbitration agreement, the signing of which was not a requirement for admission to the facility or the receipt of services, did not serve the purpose of establishing a place for the resident to live or provide consent for medical or other care or treatment. The record did not reflect that signing the agreement was otherwise reasonably necessary to provide for the resident's support, care, education, health, or welfare. CL SNF, LLC v. Fountain, 355 Ga. App. 176, 843 S.E.2d 605 (2020).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, § 86 et seq.

C.J.S.

- 57 C.J.S., Mental Health, §§ 176 et seq., 185 et seq.

ALR.

- Amount of attorneys' compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

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