Conduct of emergency guardianship hearing; limitations on emergency guardianship; O.C.G.A. § 29-4-16

If an emergency guardianship is warranted, O.C.G.A. § 29-4-16 sets the requirements for how the hearing is conducted.

O.C.G.A. § 29-4-16 provides:

(a) The court shall conduct the emergency guardianship hearing, at the time and date set forth in its order, to determine whether there is clear and convincing evidence of the need for an emergency guardianship in light of the evidence taken at the hearing. In addition to the evidence at the hearing, the court may consider the evaluation report and any response filed by the proposed ward. The proposed ward may also challenge, by appropriate evidence and argument, the sufficiency and weight of the results and conclusions of the evaluation and written report and the qualifications, experience, or abilities of the person performing the evaluation. The burden of proof shall be upon the petitioner. Upon the consent of the petitioner and the proposed ward, the court may grant a continuance of the case for a period not to exceed 30 days.

(b) If the court at the emergency hearing finds that an emergency guardianship is necessary, the court shall order the emergency guardianship; provided, however, that:

(1) Any emergency guardian shall have only those powers and duties specifically enumerated in the letters of emergency guardianship and the powers and duties shall not exceed those absolutely necessary to respond to the immediate threatened risk to the ward;

(2) The court may order the emergency guardian to make any report the court requires;

(3) If the court finds that the proposed ward has one or more developmental disabilities as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is a need for an emergency guardianship unless the evidence shows by clear and convincing evidence that, due to such developmental disability or disabilities and other factors that may be present, the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety and there is an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed; and

(4) The emergency guardianship shall terminate on the earliest of:

(A) The court’s removal of the emergency guardian, with or without cause;

(B) The effective date of the appointment of a guardian;

(D) The date specified for the termination in the order appointing the emergency guardian;

(E) Sixty days from the date of appointment of the emergency guardian, provided that the court had jurisdiction to issue such order under paragraph (1) of Code Section 29-11-12; or

(F) Ninety days from the date of appointment of the emergency guardian, provided that the court had jurisdiction to issue such order under paragraph (2) or (3) of Code Section 29-11-12.

Is the Court's Order appealable?

In a 1986 Attorney General Opinion, 1986 Ga. Op. Att’y Gen. 168; 1986 Ga. Op. Atty Gen. No. U86-18, which examined a prior but related code section, the AG concluded that if the Probate Court’s Order was final, then it is appealable. “[I}t is my unofficial opinion that if the appointment of an emergency guardian is only for that period of time pending the outcome either of the emergency guardianship hearing or the permanent guardianship hearing, the order would not be final or appealable to a jury in superior court under current law, and hence would not be subject to the 1986 Act. On the other hand, if the petition before the probate court seeks only an emergency guardian for a period not to exceed 45 days, as in a situation where immediate surgical or other medical consent is required for a seriously ill proposed ward, an order granting such a petition would leave nothing further to be decided by the probate court. This latter type of temporary guardianship order would then be final, appealable to a superior court jury under current law, and hence, in my unofficial opinion, would be a “civil case” under the 1986 Act, giving a party a right to demand a jury trial.” This appears to be consistent with O.C.G.A. § 29-4-70(d) which provides that an Order appointing an emergency guardian to serve during the pendency of a full guardianship proceeding is not appealable.