Obligations and Liabilities of Conservator

1. Law
2. Georgia Code
3. Guardian and Ward
4. Conservators of Adults
5. Rights and Responsibilities of Ward
6. Obligations and Liabilities of Conservator

1. Except as otherwise provided by law or by the court, a conservator shall receive, collect, and make decisions regarding the ward's property. A conservator shall, to the extent feasible, encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the ability to manage the ward's property. A conservator, in making decisions, shall consider the expressed desires and personal values of the ward which are known to the conservator. A conservator shall at all times act as a fiduciary in the ward's best interest and exercise reasonable care, diligence, and prudence.
2. A conservator shall:
   1. Respect the rights and dignity of the ward;
   2. Be reasonably accessible to the ward and maintain regular communication with the ward;
   3. If necessary, petition to have a guardian appointed;
   4. Endeavor to cooperate with the guardian, if any;
   5. Provide for the support, care, education, health, and welfare of the ward and persons who are entitled to be supported by the ward, to the extent consistent with the current and future needs and resources of the ward;
   6. Give such bond as required by Code Section 29-5-40;
   7. Within two months of appointment, file with the court and provide to the guardian, if any, an inventory of the ward's property and a plan for administering the property, pursuant to the provisions of Code Section 29-5-30.
   8. Take into account any estate plan of the ward known to the conservator in the administration of the conservatorship;
   9. Keep accurate records, including adequate supporting data, and file annual returns, as required by Code Section 29-5-60;
   10. Promptly notify the court of any change in the ward's condition that in the opinion of the conservator might require modification or termination of the conservatorship;
   11. Promptly notify the court of any conflict of interest between the ward and the conservator when the conflict arises or becomes known to the conservator and take such action as is required by Code Section 29-5-24; and
   12. Keep the court informed of the conservator's current address.
3. A conservator, solely by reason of the conservator-ward relationship, is not personally liable for:
   1. The ward's expenses or the expenses of those entitled to be supported by the ward;
   2. Contracts entered into in the conservator's fiduciary capacity;
   3. The acts or omissions of the ward;
   4. Obligations arising from ownership or control of property of the ward; or
   5. Other acts or omissions occurring in the course of the conservatorship.

(Code 1981, §29-5-22, enacted by Ga. L. 2004, p. 161, § 1.)

Cross references.

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

Bond required of guardians of minors, § 29-4-12.

Administrator's duty to file inventory, § 53-7-75 (Pre-1998 Probate Code).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1855-56, p. 147, § 1, former Code 1895, § 2571, former Code 1933, § 49-231 and § 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-4 are included in the annotations for this Code section.

Failure entails burden of proving faithful discharge of duties.

- Failure of executor or guardian to make returns is an omission of duty, and therefore a breach of trust, and puts upon the executor the burden of proving to satisfaction of court that the executor discharged trust with fidelity. Wellborn v. Rogers, 24 Ga. 558 (1858) (decided under Ga. L. 1855-56, p. 147, § 1).

Failure to make returns of interest does not demonstrate fraud.

- Failure of guardian to make returns of interest accumulated in guardian's hands is not by itself sufficient to authorize finding of fraud and charging of compound interest. Royston v. Royston, 29 Ga. 82 (1859) (decided under Ga. L. 1855-56, p. 147, § 1).

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).

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).

Probate court's jurisdiction to approve the settlement of a malpractice claim and to protect the best interests of the incapacitated ward conferred upon that court the authority to require that the ward's attorneys pay into the registry of court such settlement funds as they disbursed to themselves, and to hold the attorneys in contempt for their refusal to do so. Gnann v. Woodall, 270 Ga. 516, 511 S.E.2d 188 (1999) (decided under former O.C.G.A. § 29-5-4).

Cited in Byne v. Anderson, 67 Ga. 466 (1881); Davis v. Culpepper, 167 Ga. 637, 146 S.E. 319 (1929); Jennings v. Longino, 49 Ga. App. 494, 176 S.E. 94 (1934); Dowdy v. Jordan, 128 Ga. App. 200, 196 S.E.2d 160 (1973); Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998); Graves v. Brown, 237 Ga. App. 589, 516 S.E.2d 324 (1999); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 86 et seq., 185 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 56 et seq., 75 et seq., 283 et seq.

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

ALR.

- Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 94 A.L.R. 1101; 96 A.L.R.3d 1102.

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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