Assessment of Costs, Compensation, Fees, and Expenses; Factors Determining Allocation of Fees and Costs; Enforcement of Award of Costs, Compensation, Fees, and Expenses

  1. Law
  2. Georgia Code
  3. Guardian and Ward
  4. Court Proceedings
  5. Assessment of Costs, Compensation, Fees, and Expenses; Factors Determining Allocation of Fees and Costs; Enforcement of Award of Costs, Compensation, Fees, and Expenses

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  1. Except as otherwise ordered by the court under paragraph (2) of subsection (a) of Code Section 29-4-10, under paragraph (2) of subsection (a) of Code Section 29-5-10, or under subsection (b) of Code Section 29-11-16, and except as otherwise provided in subsection (a) of Code Section 9-12-135, all costs of court under Code Sections 15-9-60 and 15-9-126 or other applicable law and all compensation, fees, and expenses awarded by the court under subsections (a) and (b) of Code Section 29-9-15, under Code Section 29-9-16, or under subsection (b) of Code Section 29-9-18, may be assessed and shall be paid as directed by the court in the exercise of its sound discretion and as the court may deem to be in the best interest of the minor, proposed ward, or ward who is the subject of the particular proceeding as provided in subsections (b) and (c) of this Code section.
  2. In any proceeding for the appointment of a guardian or conservator pursuant to the provisions of Chapter 2, 3, 4, 5, 7, or 11 of this title, the costs, compensation, fees, and expenses provided for by subsection (a) of this Code section, the court shall consider the following in determining allocation of fees and costs set out in subsection (a) of this Code section:
    1. The estate of the minor or ward for whom a guardian or conservator is appointed in such proceeding;
    2. The conduct of the petitioners in any such proceeding in which no guardianship order or conservatorship order is entered by the court;
    3. If the judge who actually presided over the hearing includes a finding in the order that the party against whom such costs, compensation, fees, and expenses are cast pursuant to paragraph (1) or (2) of this subsection appears to lack sufficient assets to defray such costs, compensation, fees, and expenses shall be paid by the county of the court exercising jurisdiction over any such proceeding;
    4. The conduct of any party or other person subject to the jurisdiction of the court who has been the perpetrator of abuse, neglect, or exploitation against the person or property of the minor, proposed ward, or ward, provided that the judge who actually presided over the hearing includes a finding in the order determining that such abuse, neglect, or exploitation against the person or property of the minor, proposed ward, or ward has occurred and identifying the perpetrator thereof; or
    5. Any property, fund, or proceeds recovered on behalf of or in favor of a minor or ward in accordance with an order of the court assessing such costs, compensation, fees, and expenses against such property, fund, or proceeds.
  3. In all proceedings pursuant to the provisions of Chapter 2, 3, 4, 5, 7, or 11 of this title other than for the appointment of a guardian or conservator, the costs, compensation, fees, and expenses provided for by subsection (a) of this Code section may be assessed and shall be paid as directed by the court in the exercise of its sound discretion and as the court may deem to be in the best interest of the minor, proposed ward, or ward who is the subject of the particular proceeding, as follows:
    1. From the estate of the minor or ward for whom a guardian or conservator has been appointed in any such proceeding, if the court finds that the proceeding was brought in the best interest of the minor or ward;
    2. By the petitioners or movants in any such proceeding;
    3. From a guardian or conservator or from the surety on such guardian's or conservator's bond, subject to other applicable law governing the liability of sureties on such bonds, in any such proceeding, if:
      1. Such guardian or conservator admits to a violation of any obligation of such guardian or conservator in such guardian's or conservator's representative capacity under this title or other applicable law;
      2. The court finds that such guardian or conservator has committed a breach of fiduciary duty or has threatened to commit a breach of fiduciary duty;
      3. The court revokes or suspends such guardian's letters of guardianship or such conservator's letters of conservatorship or imposes sanctions upon such guardian or conservator in such proceeding; or
      4. The court otherwise finds that such guardian or conservator has committed misconduct or has acted contrary to the best interest of the minor or ward;
    4. By the county of the court exercising jurisdiction over any such proceeding, provided that the judge who actually presided over the hearing includes a finding in the order that the party against whom such costs, compensation, fees, and expenses are cast pursuant to paragraph (1), (2), (3), or (5) of this subsection appears to lack sufficient assets to defray such costs, compensation, fees, and expenses;
    5. By any party or other person subject to the jurisdiction of the court who has been the perpetrator of abuse, neglect, or exploitation against the person or property of the minor, proposed ward, or ward, provided that the judge who actually presided over the hearing includes a finding in the order determining that such abuse, neglect, or exploitation against the person or property of the minor, proposed ward, or ward has occurred and identifying the perpetrator thereof; or
    6. From any property, fund, or proceeds recovered on behalf of or in favor of a minor or ward in accordance with an order of the court assessing such costs, compensation, fees, and expenses against such property, fund, or proceeds.
  4. An award of costs, compensation, fees, and expenses under this Code section may be enforced by a judgment, writ of fieri facias, execution, or attachment for contempt.

(Code 1981, §29-9-3, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 26/HB 70.)

The 2019 amendment, effective January 1, 2020, substituted the present provisions of this Code section for the former provisions, which read: "A person who is appointed as counsel for a ward, proposed ward, or alleged incapacitated person is not eligible to be appointed as guardian ad litem for the same individual, and a person who is appointed as guardian ad litem for a ward, proposed ward, or alleged incapacitated person is not eligible to be appointed as counsel for the same individual."

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 71 Mercer L. Rev. 327 (2019).

JUDICIAL DECISIONS

Error in permitting appointment as attorney and guardian ad litem.

- In light of the clear statutory language in O.C.G.A. § 29-9-3 prohibiting an attorney from acting as both an advocate and a guardian ad litem (GAL), as well as the importance of the right to cross-examination, the trial court erred by treating the attorney as both the attorney and the GAL, thereby prohibiting the ward's grandmother from questioning the GAL. In re Estate of Thompson, 332 Ga. App. 774, 775 S.E.2d 158 (2015).


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