Verified Return Required Annually; Change of Reporting Period; Production of Documents; Failure to File Return

1. Law
2. Georgia Code
3. Guardian and Ward
4. Conservators of Adults
5. Return and Settlement of Accounts
6. Verified Return Required Annually; Change of Reporting Period; Production of Documents; Failure to File Return

1. Each year, within 60 days of the anniversary date of qualification, every conservator shall file with the court a verified return consisting of a statement of the receipts and expenditures of the conservatorship during the year preceding the anniversary date of qualification, an updated inventory consisting of a statement of the assets and liabilities of the estate as of the anniversary date of qualification, an updated plan for managing, expending, and distributing the ward's property, a note or memorandum of any other fact necessary to show the true condition of the estate, and a statement of the current amount of the bond. The conservator shall mail a copy of the return by first-class mail to the surety on the conservator's bond, the ward, and the ward's guardian, if any.
2. Upon petition of the conservator or upon the court's own motion, the court may change the reporting period from the year immediately preceding the anniversary date of qualification to the year immediately preceding a date ordered by the court. In lieu of changing the reporting date, the court is authorized to accept a return for filing even if the return does not cover the appropriate reporting period; however, such acceptance shall not change the reporting period established by either the anniversary date of qualification or a subsequent order of the court, unless the court also enters an order changing the reporting date.
3. The court shall carefully examine each return of a conservator and, upon petition of any interested person or upon the court's own motion, may require the conservator to produce the original documents that support the return. Except as otherwise provided in this subsection, if no objection is filed within 30 days of the time the return is filed, the court shall record the return within 60 days of its filing. The return shall be kept on file in the court. The recorded return shall be prima-facie evidence of its correctness. If there is an objection to the return or if the court on its own motion determines that the conservator may have wasted the property of the ward or failed in any manner to comply with applicable law, the court shall hold a hearing or take such other action as the court deems appropriate.
4. The court shall keep a docket of conservators liable to file returns. Upon the failure of any conservator to file any return by the time frame required by law, the court shall cite the conservator to appear and show reason for the delay. A conservator who fails to file an annual return as required by law shall forfeit all commissions and other compensation for the year within which no return is filed unless otherwise ordered by the court. A willful and continued failure to file a return shall be good cause for removal.

(Code 1981, §29-5-60, enacted by Ga. L. 2004, p. 161, § 1.)

Cross references.

- 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 1868, § 1807, former Code 1882, § 1816, former Civil Code 1910, § 3051, former Code 1933, §§ 49-231 and 49-232, and former O.C.G.A. § 29-2-45 are included in the annotations for this Code section.

Guardian failing to make annual return forfeits annual commission.

- Under former O.C.G.A. § 29-2-44 and O.C.G.A. § 53-6-146, guardians and administrators who fail to make annual returns as required by law forfeit their commissions for those years unless the judge of the probate court orders them relieved of this forfeiture. Fuller v. Moister, 246 Ga. 397, 271 S.E.2d 622 (1980) (decided under former Code 1933, § 49-231).

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).

Former Code 1933, § 49-232 (former O.C.G.A. § 29-2-45) was to be liberally construed in favor of incompetent ward. Aiken v. Mitchell, 66 Ga. App. 309, 18 S.E.2d 219 (1941) (decided under former Code 1933, § 49-232).

Former Code 1933, § 49-232 (former O.C.G.A. § 29-2-45) was applicable to guardians of incompetent veterans of World War I and other persons of unsound mind. Dillon v. Sills, 54 Ga. App. 299, 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232).

"Unfit" is not limited nor is scope of inquiry.

- "Unfit," as used in former Code 1933, § 49-232 (former O.C.G.A. § 29-2-45), was not limited to physical, mental, or moral conditions, and the Code laid down no limitations on scope of inquiry as to fitness and capacity of a guardian. Morse v. Caldwell, 55 Ga. App. 804, 191 S.E. 479 (1937) (decided under former Code 1933, § 49-232).

Guardian's failure to file annual returns was evidence that the guardian's fiduciary duties were breached and such evidence supported removal. Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998) (decided under former O.C.G.A. § 29-2-45).

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); Mitchell v. Mitchell, 201 Ga. 621, 40 S.E.2d 738 (1946); Dowdy v. Jordan, 128 Ga. App. 200, 196 S.E.2d 160 (1973); 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).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-232 are included in the annotations for this Code section.

Use of estate funds should accompany petition to revoke guardianship.

- One who has been adjudged insane and confined to state mental hospital and who desires to use funds in estate for purpose of proving that sanity has been restored, should properly proceed by making application to ordinary (now judge of probate court) for revocation of letters of guardianship. 1952-53 Op. Att'y Gen. p. 373 (decided under former Code 1933, § 49-232).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, § 164 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, § 210 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.

Liability of guardian, or his surety, as affected by agreement by which he limits his control over funds or investments, 102 A.L.R. 1108.

Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535.

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