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.
BLOG POSTS
Rights of the ward; impact on voting and testamentary capacity; O.C.G.A. § 29-4-20
Georgia Guardianship law presupposes that the guardian must act in the best interests of the Ward. In that regard, O.C.G.A. § 29-4-20 states certain rights the Ward has. O.C.G.A. § 29-4-20 provides: (a) In every guardianship, the ward has the right to: (1) A qualified guardian who acts in the best interest of the ward; […]
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Guardianship Appeal Statute is purely statutory
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Petition for appointment of emergency guardian; requirements of petition; O.C.G.A. § 29-4-14
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Requirements of order granting guardianship; service O.C.G.A. § 29-4-13
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Petition for appointment of guardian; requirements for petition, O.C.G.A. § 29-4-10
Last updated 9/5/2025 Petition for Appointment of Guardian In Georgia, a Petition for Guardianship is filed on Georgia Probate Standard Form 12. Care should be used because the forms are updated from time to time. As pointed out in other cases, an objection is not a Petition. The standard form generally requires a response to […]
Order of preference in selection of guardians; written request nominating guardian; requirements of writing, O.C.G.A. § 29-4-3
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 […]
Qualifications of guardians selected for adults, O.C.G.A. § 29-4-2
Only individuals or the Department of Human Services may serve as guardian. Although not expressly spelled out, only someone capable of fulfilling the duties of a guardian may serve, as explained in In re Estate of Jenkins, 366 Ga. App. 628 (2023). O.C.G.A. § 29-4-2 provides: (a) Only an individual may serve as guardian of […]
Prerequisite findings prior to appointment of guardian for adult; extent of guardianship, O.C.G.A. § 29-4-1
In Georgia, when determining whether a guardianship is necessary, the Court looks solely at capacity. Disability alone is not sufficient to impose a guardianship. There is no presumption that a guardianship is necessary. The appointment of a guardian must be in the Ward’s best interests. Further, Courts are required to structure the guardianship to encourage […]
Georgia Guardianship and Conservatorship, OCGA 29-1-1
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Probate Court properly exercised its discretion disregarding spouse’s statutory priority as guardian
In In re Estate of Jenkins, 366 Ga. App. 628 (2023), Gary Jenkins was living in an assisted living facility due to his severe memory and mental health problems. His spouse filed a Petition for Guardianship and Conservatorship after Mr. Jenkins impersonated a police officer and, as a result, was admitted to a memory care […]
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What is Clear and Convincing Evidence?
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There is no right to appeal a non-final Guardianship Order
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The person nominated by a proposed ward as Guardian or Conservator is not required to file pleadings to be considered
In In Re Estate of Kurtzman, 366 Ga. App. 725 (2023), Bette Kurtzman, 85 years old, had dementia and was residing in an assisted living facility. In December of 2020, Kurtzman’s daughter, Amy, and brother, Myron, filed a Petition for Guardianship and Conservatorship. Bette Kurtzman objected to the petition, alleging she had nominated her son, […]
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Planning for Adult Children with Disabilities
Planning for Adult Children with Disabilities Childhood Disability Benefits assist disabled children and adults who became disabled prior to age 22. Most begin with Supplemental Security Income, which is a monthly cash payment for individuals with limited income and few resources. Because a parent’s income and resources are usually deemed available to the child, SSI […]
Oath for Georgia Guardians and Personal Representatives
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Probate Court Reversed for Ordering Conservatorship Accounting Before Determining Identity of Estate’s Personal Representative
The Georgia Court of Appeals decided the case of In re Bessie Mae Blake on February 20, 2024. Willis Blake was appointed as his mother’s conservator in 2000, but he was a poor record keeper. Although he was required to set up a separate account for Bessie Mae, keep records of expenses and file annual […]
Guardianship Evaluation is Admissible Regardless of Stipulation
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Georgia Court of Appeals Revisits the Preponderance-of-the-Evidence Standard
In White v. Stanley (Georgia Ct. App. 10/3/2023), Rhonda White appealed a jury verdict in favor of the defendants relating to a motor vehicle collision. White argued that the trial court gave an improper jury instruction regarding the Preponderance-of-the-Evidence Standard. The trial court instructed the jury using the existing pattern jury instructions. However, the law […]
Sometimes You Must Say No
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Family Acrimony Deemed Sufficient to Disregard Nomination of Guardian
In In re Wheeler (Ga. Ct. App. 6/6/2023), the Court of Appeals upheld the Probate Court’s decision that (1) there was sufficient evidence to impose a guardianship and conservatorship, and (2) that a neutral third-party be appointed as guardian instead of the person nominated by the ward. Because the reasoning in this case is “thin,” […]
Approving Settlements for Minors
In April, 2022, we reported that HB 620 altered how settlements for minors can be approved under O.C.G.A. § 29-3-3, at least in cases where the trial court approves direct payment to a trust. Prior to passage of HB 620, Section 29-3-3 read as follows: 2021 Version For purposes of this Code section, the term […]
Elder Law Mishmash June 2023
The following is a mishmash of information on various Elder Law, Special Needs Law, and Estate Planning issues. It also includes anything else we found interesting during the month of June, 2023. We will continue updating from time to time throughout the month. Last updated 6/8/2023. Keep in mind, you are using linked content at […]
Failure to Admit Evaluator’s Report Required Reversal of Conservatorship Order
Ms. Humprey was a hospital patient and the University of Tennessee Medical Center filed a petition for Conservatorship. The petition alleged she was unable to make appropriate decisions regarding her treatment and medical care. Petitioner attached the report of Dr. Taylor Wright in support of its petition. The Court appointed a guardian ad litem and […]
Ohio Court of Appeals Affirms Appointment of Guardian Despite Questionable Transcript from Probate Court Hearing
On September 15, 2022, the Ohio Court of Appeals affirmed a Probate Court decision appointing a guardian despite a spotty record of the proceedings below. In In re Guardianship of S.B., the proposed was suffered a traumatic brain injury. In 2004, the ward’s father filed a petition for guardianship and was appointed guardian. In 2007, […]
Conservator has exclusive power to bring, defend or participate in lawsuits for a ward
in Hall v. Davis Lawn Care Service, Inc., 314 Ga. 488 (S22G0019 8/23/2022), the Supreme Court unravelled some messy litigation where a conservator was appointed for a minor, but was deemed by the lower courts as having forfeited his exclusive power to bring, defend or participate in legal proceedings for his ward pursuant to OCGA […]
Form: Consent to Criminal Background Check
Below is an exemplar consent to a criminal background check. These are required in most guardianship cases and some probate cases.
How to Communicate with Courts, Parties in Litigation and Others
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Probate Court must make findings of fact and conclusions of law when requested
In the Estate of T.M.N. (Ga. Ct. App. 6/13/2022), Quanda Jessie served as conservator of her minor child’s estate and had done so since 2016. The primary asset in the conservatorship estate was a wrongful death recovery, although Social Security survivor’s benefits were also paid to the child. Jessie updated the asset management plan and […]
Conservator’s settlement for minor children upheld
In Smith v. Parks Hotels & Resorts, Inc. (Georgia Ct. App. June 8, 2022), the mother of five children was killed by her boyfriend while she was cleaning a room as a Hilton employee. The probate court appointed a conservator for the minor children who filed a Worker’s Compensation claim. The claim was settled for […]
Probate Court’s Order on Emergency Guardianship is not appealable
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Elder Law and Special Needs Law News Roundup – 5-20-2022
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Appeal Challenging Georgia’s Equitable Caregiver Statute was moot
In McAlister v. Clifton (Ga. 4/19/2022), the Georgia Supreme Court heard a case challenging the equitable caregiver statute, O.C.G.A. § 19-7-3.1. There, the trial court awarded Wendi Clifton, McAlister’s domestic partner, visitation rights to McAlister’s adopted daughter, Catherine. McAlister contended the equitable caregiver statute was unconstitutional facially and as applied to Clifton. McAlister also appealed […]
News Roundup – 2/25/2022
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Form: Guardian’s Personal Status Report
Guardians must file a personal status report within sixty (60) days after appointment, and then annually, reporting the ward’s location, condition and any unmet needs. Although these forms tend to vary from court to court, unless the court directs that a different form be used, the following is an example of what guardians must file: […]
Form: Conservator’s Annual Return (or Final Return)
Initially, a conservator must file an inventory and asset management plan within 60 days after appointment. Each year a conservator must file an annual return and a final return must be filed when the conservatorship terminates (or when after the ward’s death). Unless the applicable Probate Court directs that a different form be used, the […]
Appeal Route From Article 6 Probate Court is to Court of Appeals
Appeal Route From Article 6 Probate Court In Spence v. Dep’t of Behavioral Health and Developmental Disabilities, 359 Ga. App. 603 (2021), Jermaine Spense was involuntarily committed as a hospital inpatient. Spence sought review after the Department sought an order of continued hospitalization of Spence pursuant to OCGA § 37-3-83. On April 18, 2019, the […]
Conservator/County Administrator appointed ex-officio administrator of ward’s estate
In In re Estate of Brown, 357 Ga. App. 869, 850 S.E.2d 503 (2020), the Fulton County Probate Court appointed Ann Herrera as conservator for Leon Brown in 2011. After Brown died, Herrera filed a petition for letters of administration and Brown’s sister, Linda Glover, objected. Glover argued that Brown was a resident of Henry […]
Form: Health Values Questionnaire
In addition to a health care advance directive, one way to create evidence regarding your health treatment wishes and end-of0life wishes is to complete a health values questionnaire. One of the issues in Cruzan and Schiavo was the absence of adequate evidence demonstrating what the patient would want if she could speak for herself. Wouldn’t […]
Probate Court May Restrict a Conservator’s Power to Spend Ward’s Income
In In re Estate of Jenkins, 358 Ga. App. 254 (2021), the ward (Shaun Jenkins) sustained profound injuries as an infant due to malpractice. Jenkins received a settlement giving him annual income of $337,000 (or about $28,000 per month). The probate court limited the Conservator’s spending to $17,000. In 2019, the Conservator purchased a disabled-accessible […]
Form: Georgia Conservator’s Return
In Georgia, a Conservator must file an annual return and a final return. The current form appears below. For the most part, this form requires a check-book type entry, listing all funds coming in and all funds going out. One mistake many conservators make which adds to the book-keeping burden is maintaining multiple accounts. Multiple […]
Standby Guardians
A parent or a guardian (each a “designated individual”) may appoint a standby guardian of a minor. O.C.G.A. § 29-2-10. Upon determination that the designating individual is unable to care for the minor, the standby guardian, without judicial intervention, may assume all rights, duties and responsibilities of guardianship of the minor. The standby guardian must […]
Involuntary Hospitalization and Treatment of Involuntary Patients
The procedure commonly referred to as a “1013” is governed by O.C.G.A. Title 37, Chapter 3 (§ 37-3-41 et seq).* The procedure applies to individuals who present a substantial risk of imminent harm to himself, herself or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability […]
