(See Editor's notes.) Order of Preference in Selection of Guardians; Written Request Nominating Guardian; Requirements of Writing

  1. Law
  2. Georgia Code
  3. Guardian and Ward
  4. Guardians of Adults
  5. General Provisions
  6. (See Editor's notes.) Order of Preference in Selection of Guardians; Written Request Nominating Guardian; Requirements of Writing

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  1. The court shall appoint as guardian that individual who will best serve the interest of the adult, considering the order of preferences set forth in this Code section. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.
  2. Individuals who are eligible have preference in the following order:
    1. The individual last nominated by the adult in accordance with the provisions of subsection (c) of this Code section;
    2. The spouse of the adult or an individual nominated by the adult's spouse in accordance with the provisions of subsection (d) of this Code section;
    3. An adult child of the adult or an individual nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section;
    4. A parent of the adult or an individual nominated by a parent of the adult in accordance with the provisions of subsection (d) of this Code section;
    5. A guardian appointed during the minority of the adult;
    6. A guardian previously appointed in Georgia or another state;
    7. A friend, relative, or any other individual;
    8. Any other person, including a volunteer to the court, found suitable and appropriate who is willing to accept the appointment; and
    9. The county guardian.
  3. At any time prior to the appointment of a guardian, an adult may nominate in writing an individual to serve as that adult's guardian should the adult be judicially determined to be in need of a guardian, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or the provisions of Code Section 31-32-5.
  4. At any time prior to the appointment of a guardian, a spouse, adult child, or parent of an adult may nominate in writing an individual to serve as that adult's guardian should the adult be judicially determined to be in need of a guardian, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or, if in a will, is executed in accordance with the provisions of Code Section 53-4-20.
  5. A writing nominating the guardian of an adult:
    1. Must contain an express nomination of the individual who shall serve as guardian and must be signed or acknowledged by the individual making the nomination in the presence of two witnesses who sign in the individual's presence; and
    2. May be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.

(b.1)If no other person is available to serve as guardian of the ward, the judge may appoint a public guardian in accordance with Chapter 10 of this title. In the event the court determines that there is no public guardian registered in accordance with Chapter 10 of this title appropriately available to serve as guardian for a ward, the court may appoint the Department of Human Services as guardian. If so appointed, the department shall designate a representative of the department to provide guardian services who shall take the oath of guardianship. If, after having been so appointed, the department presents to the court a public guardian registered in accordance with Chapter 10 of this title or some other person suitable and appropriate to serve as guardian of a ward and willing to so serve, the court shall allow the department to resign and shall appoint such public guardian or such other person. If the department is appointed pursuant to this subsection, it shall be bound by all the requirements of this chapter, except that it shall not be required to post bond or pay any cost or fee of court associated with the guardianship proceeding. If the department is appointed pursuant to this subsection and enters into a contract with an independent contractor for the provision of guardianship services, the expense of providing such services may be paid for from state funds appropriated for public guardians under Chapter 10 of this title or, upon approval of the court, from the estate of the ward.

(Code 1981, §29-4-3, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 509, § 3/HB 394; Ga. L. 2007, p. 133, § 7/HB 24; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2011, p. 752, § 29/HB 142.)

Editor's notes.

- Ga. L. 2005, p. 509, § 9/HB 394, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2005, and all appointments of guardians of the person made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act."

Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For article, "Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia's Same Sex Spouses," see 21 Ga. St. Bar. J. 9 (Oct. 2015).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Failure to explain reason for selection of county guardian.

- Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2(c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2).

Cited in Twitty v. Akers, 218 Ga. App. 467, 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, § 40 et seq.

C.J.S.

- 57 C.J.S., Mental Health, § 135 et seq.

ARTICLE 2 PROCEDURE FOR APPOINTMENT


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