Judicial review of pleadings and evaluation report; findings; hearing, O.C.G.A. § 29-4-12

In In re Estate of Davis, 330 Ga. App. 97 (2014), the Court said: “After the evaluation report has been filed, the court is to review the report and the pleadings in order to make another probable cause determination. OCGA §§ 29-4-12 (a) and 29-5-12 (a). If, after the review, the court finds no probable cause to support a finding that the proposed ward is in need of a guardian or conservator, then the court is to dismiss the petition. OCGA §§ 29-4-12 (b) and 29-5-12 (b). But if the court finds probable cause, it is to schedule a hearing on the petition. OCGA §§ 29-4-12 (c) and 29-5-12 (c).” Davis, however, was reversed because after the initial finding of probable cause is made, the Petition may only be filed after the Court has reviewed the required report.  At the hearing, the Court must consider any admissible evidence under the applicable standard, here, clear and convincing evidence, to determine whether the adult is incapacitated. See In re Copelan, 250 Ga. App. 856 (2001). In the Interest of M.P., 338 Ga. App. 696, ft. 22 (2016), the Court cites subsection (d)(5) which states “The court shall utilize the criteria in Code Section 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing.” (Emphasis added). 

Cases decided under the prior Code indicate that if notice is insufficient, then the proceedings are void. In Edwards v. Lampkin, 112 Ga. App. 128, aff’d 221 Ga. 486 (1965), notice of an evaluation was indefinite and did not comply with the decision in Milam v. Terrell, 214 Ga. 199 (1958). “By its holding in Milam that “the notice must also give the time the commission is to issue” the Supreme Court meant that notice must be given of the exact day the commission would issue.” The Court held that insufficiency of notice meant it did not meet the requirements of jurisdiction and rendered the proceeding void on its face. In Milam, the Court said, “the jurisdiction of the ordinary is extremely limited, the proceedings are summary and must be strictly construed, and must show on their face such facts especially as to the giving of notice, the issuance of the commission, and the return thereof, as will authorize the judgment appointing the guardian.” (Emphasis added).

In In re Phillips, No. A02A2368 (Oct. 9, 2002), the Court reversed where there was no recording because it could not determine whetehr the Court’s finding was supported by clear and convincing evidence. “Absent a record of the hearing, we cannot determine whether the probate court’s finding that Phillips was incapable of managing his estate was supported by clear and convincing evidence. Accordingly, because the probate court failed to have the hearing recorded or reported, we find that Phillips is effectively denied his right to appeal the probate court’s decision. We vacate in part the probate court’s order denying the guardian’s petition and remand this case for further proceedings on the issue of the guardianship as to Phillips’ property rights.”

Subsection (d)(5) treats the Evaluator’s report like a public record or report and authorizes the Court to consider the evaluation. Thus, a hearsay objection alone does not prevent the Court from considering it. See Guardianship Evaluation is Admissible Regardless of Stipulation. As of July 1, 2025, HB 36 allows the Court to also consider the proposed ward’s argument and other evidence in response to the evaluation. See HB 36

In a 1977 Georgia Attorney General Opinion, 1977 Ga. Op. Atty Gen. No. U77–65, the Attorney General responded to a request from the Probate Court of Fulton County. There, the AG cited Spooner v. Spooner, 148 Ga. 612 (1918) for the proposition that Georgia’s [prior] guardianship code is limited to “the appointment of guardians to those cases where the ward was mentally, as opposed to physically, incapacitated.”  The AG went on to say “Therefore, it appears that the probate court has no authority to name a guardian for a person who is perfectly rational but only suffers some physical incapacity.” Similarly, Georgia’s current Code focuses on capacity. In In re Estate of Davis, 330 Ga. App. 97 (2014), the Court said: “The basic finding that the probate court must make when considering a petition for guardianship is that “the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.” OCGA § 29-4-1 (a). The necessary finding for a conservatorship is that “the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.” OCGA § 29-5-1 (a).” See In re Copelan, 250 Ga. App. 856 (2001) (“The unsoundness of mind which will justify an appointment must be more than mere physical disability.”).

Subsection (8), re-numbered from subsection (6) in 2025, links back to the best interests standard in Section 29-4-3. In In re Wheeler, 368 Ga. App. 1 (2023), the Court said: “Under OCGA § 29-4-3 (a), the court shall appoint a guardian “who will best serve the interest of the adult,” considering the order of preferences set forth in the statute. See also OCGA § 29-4-12 (d) (6) (“The court shall select as guardian the individual who will serve the best interest of the ward.”). “The individual last nominated [*6] by the adult” in accordance with statutory requirements has first preference, and the court may ignore this preference “only upon good cause shown.” OCGA § 29-4-3 (a) & (b) (1). “In deciding whether to depart from the statutory preferences, the court shall consider all relevant factors, including the ability of the person to perform the duties of a guardian[.]” In re Moses, 273 Ga. App. 501, 504 (615 SE2d 573) (2005).” (Emphasis added).  As further discussed in Wheeler, family acrimony is a good cause to disregard a nominated guardian or statutory priority as required under O.C.G.A. § 29-4-3.

This subsection is cited in In re Kurtzman, 366 Ga. App. 725 (2023).

In the 2025 legislative session, changes were made primarily to subsection (d) regarding evaluations. Additional professionals are allowed to perform guardianship evaluations. There is no presumption that an individual with a developmental disability requires a guardian. See 2025 Changes.