The ultimate test in determining who should be appointed as guardian is “who will best serve the interest of the adult.” There is, however, a priority list. Certain persons, if they seek to be appointed, may only be disregarding “upon good cause shown.” Since most guardianship hearings are audio recorded, caseful counsel will want to present evidence that will make it into the Court record estsblishing good cause for disregarding preference. The better practice would be to have the final Order reflect the Judge’s reasoning for disregarding preference.
O.C.G.A. § 29-4-3 provides:
(a) The court shall appoint as guardian that individual who will best serve the interest of the adult, considering the order of preferences set forth in this Code section. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.
(b) Individuals who are eligible have preference in the following order:
(1) The individual last nominated by the adult in accordance with the provisions of subsection (c) of this Code section;
(2) The spouse of the adult or an individual nominated by the adult’s spouse in accordance with the provisions of subsection (d) of this Code section;
(3) An adult child of the adult or an individual nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section;
(4) A parent of the adult or an individual nominated by a parent of the adult in accordance with the provisions of subsection (d) of this Code section;
(5) A guardian appointed during the minority of the adult;
(6) A guardian previously appointed in Georgia or another state;
(7) A friend, relative, or any other individual;
(8) Any other person, including a volunteer to the court, found suitable and appropriate who is willing to accept the appointment; and
(9) The county guardian.
(b.1) If no other person is available to serve as guardian of the ward, the judge may appoint a public guardian in accordance with Chapter 10 of this title. In the event the court determines that there is no public guardian registered in accordance with Chapter 10 of this title appropriately available to serve as guardian for a ward, the court may appoint the Department of Human Services as guardian. If so appointed, the department shall designate a representative of the department to provide guardian services who shall take the oath of guardianship. If, after having been so appointed, the department presents to the court a public guardian registered in accordance with Chapter 10 of this title or some other person suitable and appropriate to serve as guardian of a ward and willing to so serve, the court shall allow the department to resign and shall appoint such public guardian or such other person. If the department is appointed pursuant to this subsection, it shall be bound by all the requirements of this chapter, except that it shall not be required to post bond or pay any cost or fee of court associated with the guardianship proceeding. If the department is appointed pursuant to this subsection and enters into a contract with an independent contractor for the provision of guardianship services, the expense of providing such services may be paid for from state funds appropriated for public guardians under Chapter 10 of this title or, upon approval of the court, from the estate of the ward.
(c) At any time prior to the appointment of a guardian, an adult may nominate in writing an individual to serve as that adult’s guardian should the adult be judicially determined to be in need of a guardian, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or the provisions of Code Section 31-32-5.
(d) At any time prior to the appointment of a guardian, a spouse, adult child, or parent of an adult may nominate in writing an individual to serve as that adult’s guardian should the adult be judicially determined to be in need of a guardian, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or, if in a will, is executed in accordance with the provisions of Code Section 53-4-20.
(e) A writing nominating the guardian of an adult:
(1) Must contain an express nomination of the individual who shall serve as guardian and must be signed or acknowledged by the individual making the nomination in the presence of two witnesses who sign in the individual’s presence; and
(2) May be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.
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