Modification of Conservatorship; Contents of Petition for Modification; Burden of Proof

  1. Law
  2. Georgia Code
  3. Guardian and Ward
  4. Conservators of Adults
  5. Modification and Termination of Conservatorship
  6. Modification of Conservatorship; Contents of Petition for Modification; Burden of Proof

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  1. Upon the petition of any interested person, including the ward, or upon the court's own motion, the court may modify the conservatorship by adjusting the duties or powers of the conservator, as defined in Code Sections 29-5-22 and 29-5-23, or the powers of the ward, as defined in Code Sections 29-5-20 and 29-5-21, or by making other appropriate adjustments to reflect the extent of the current capacity of the ward or other circumstances of the conservatorship. Except for good cause shown, the court shall order that notice of the petition be given, in whatever form the court deems appropriate, to the ward, the conservator, the ward's legal counsel, if any, and the ward's guardian, if any. In any proceeding under this Code section that would expand or increase the powers of the conservator or further restrict the rights of the ward, the court shall appoint legal counsel for the ward. In all other cases, the court, in its discretion, may appoint legal counsel for the ward or a guardian ad litem, or both.
  2. If the petition for modification alleges a significant change in the capacity of the ward, it must be supported either by the affidavits of two persons who have knowledge of the ward, one of whom may be the petitioner, or of a physician licensed to practice medicine under Chapter 34 of Title 43, psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker, setting forth the supporting facts and determinations. If, after reviewing the petition and the affidavits, the court determines that there is no probable cause to believe that there has been a significant change in the capacity of the ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall order that an evaluation be conducted, in accordance with the provisions of subsection (d) of Code Section 29-5-11. If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that there has been a significant change in the capacity of the ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing, with such notice as the court deems appropriate.
  3. If the petition for modification does not allege a significant change in the capacity of the ward, the court in its discretion may modify the conservatorship upon a showing that the modification is in the ward's best interest; provided, however, that the court may order compliance with any of the provisions of subsection (b) of this Code section prior to granting the petition for modification.
  4. In any proceeding under this Code section that would expand or increase the powers of the conservator or further restrict the powers of the ward, the burden is on the petitioner to show by clear and convincing evidence that the modification is in the ward's best interest. In any proceeding under this Code section that would restrict the powers of the conservator or restore powers to the ward, the burden is on the petitioner to show by a preponderance of the evidence that the modification is in the ward's best interest.
  5. No petition for modification shall be allowed by the court within two years after the denial or dismissal on the merits of a petition for substantially the same modification unless the petitioner shows a significant change in the condition or circumstances of the ward.

(Code 1981, §29-5-71, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 551, § 2/SB 134.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2011, "Code Sections" was substituted for "Code" near the middle of the first sentence of subsection (a).

Editor's notes.

- Ga. L. 2011, p. 551, § 2/SB 134, which amended this Code section, purported to amend Code Section 24-5-71 but actually amended Code Section 29-5-71.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-9 are included in the annotations for this Code section.

Petition premised on former O.C.G.A. § 29-5-9(b) that merely set forth facts concerning the state of the ward's health and finances but did not evidence a significant change in the extent of the ward's incapacity or circumstances since the appointment of the guardian was properly dismissed without conducting an evidentiary hearing. In re Pitts, 219 Ga. App. 15, 463 S.E.2d 550 (1995) (decided under former O.C.G.A. § 29-5-9).

Medical evidence.

- The admission of medical evidence which was used in a prior proceeding was not barred by former O.C.G.A. § 29-5-9(b). In re Vincent, 240 Ga. App. 876, 525 S.E.2d 409 (1999) (decided under former O.C.G.A. § 29-5-9).

The trial court did not err in admitting the examining doctor's testimony even though the ward's attorneys were not permitted in the room during the ward's evaluation. In re Vincent, 240 Ga. App. 876, 525 S.E.2d 409 (1999) (decided under former O.C.G.A. § 29-5-9).

Cited in Fuller v. Weekes, 105 Ga. App. 790, 125 S.E.2d 662 (1962).

RESEARCH REFERENCES

C.J.S.

- 57 C.J.S., Mental Health, § 180 et seq.

ALR.

- Jurisdiction of court after adjudication of restoration to competency, as regards claims against former incompetent, 128 A.L.R. 1386.


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