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 “the development of maximum self-reliance and independence in the adult.”
O.C.G.A. § 29-4-1 provides:
(a) The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.
(b) No guardian, other than a guardian ad litem or a guardian appointed in an emergency under paragraph (1) of subsection (a) of Code Section 29-11-13, shall be appointed for an adult except pursuant to the procedures of this chapter.
(c) No guardian shall be appointed for an adult unless the appointment is in the best interest of the adult.
(d) No guardian shall be appointed for an adult within two years after the denial or dismissal on the merits of a petition for the appointment of a guardian for that adult unless the petitioner shows a significant change in the condition or circumstances of the adult.
(e)
(1) No adult shall be presumed to be in need of a guardian unless:
(A) He or she has been adjudicated to be in need of a guardian pursuant to this chapter; or
(B) The court has recognized another state’s determination of incapacity and the appointment of a guardian as provided in subsection (g) of Code Section 29-11-21.
(2) An adult shall not be presumed to be in need of a guardian solely because of a finding of criminal insanity or incompetence to stand trial or a finding of a need for treatment or services pursuant to:
(A) Code Section 37-1-1;
(B) Code Sections 37-3-1 through 37-3-6;
(C) Articles 2 through 6 of Chapter 3 of Title 37;
(D) Code Sections 37-4-1 through 37-4-3 and 37-4-5 through 37-4-8;
(E) Articles 2 through 5 of Chapter 4 of Title 37;
(F) Code Section 37-5-3;
(G) Code Sections 37-7-1, 37-7-2, and 37-7-4 through 37-7-7; and
(H) Articles 2 through 6 of Chapter 7 of Title 37.
(3) An adult shall not be presumed to be in need of a guardian solely because of a finding that the adult has one or more developmental disabilities as defined in paragraph (8) of Code Section 37-1-1.
(f) All guardianships ordered pursuant to this chapter shall be designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult’s actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate.
Cases indicating sufficient evidence existed to appoint a guardian include In re Cash, 298 Ga. App. 110 (2009); In the Interest of M. P., 338 Ga. App. 696 (2016); and In re Wheeler, 368 Ga. App. 1 (2023). The subsections providing there is no presumption that developmental disability authorizes a guardianship were added by HB 36, effective July 1, 2025.
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; […]
Temporary medical consent guardianship; O.C.G.A. § 29-4-18
In some cases, no one can be found who will consent to medical procedures for a patient. O.C.G.A. § 29-4-18 provides a solution by allowing any interested party to file a petition to become a temporary medical consent guardian. It is worth noting that “a temporary medical consent guardian shall not be authorized to withdraw […]
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 […]
Guardianship Appeal Statute is purely statutory
In Matter of Doze, 717 SW 3d 240 (2025), a Missouri Court affirmed the decision below appointing Queen Doze’s father as her guardian. The case began when Queen’s sister, Mariah Doze, filed a Petitioner for Appointment of a Guardian and/or Conservator. Mariah alleged that her sister, who was 21 years old, had an “intellectual disability […]
Prerequisite findings prior to appointment of emergency guardian; evaluation; notice; hearing; O.C.G.A. § 29-4-15
All things being equal, a Petition for Emergency Guardianship should be denied in favor of a permanent petition. The reason is because emergency petitions are usually ex parte proceedings while the permanent petition allows all interested parties to present their arguments. O.C.G.A. § 29-4-15 provides: (a) Upon the filing of a petition for an emergency […]
Petition for appointment of emergency guardian; requirements of petition; O.C.G.A. § 29-4-14
Petition for Appointment of Emergency Guardian An emergency petition usually begins as an ex parte proceeding. In limited circumstances, an emergency guardianship is necessary. However, in most cases, the petition should be denied in favor of a permanent petition under O.C.G.A. § 29-4-10. In In re Farr, 322 Ga. App. 55 (2013), the probate court […]
Requirements of order granting guardianship; service O.C.G.A. § 29-4-13
Requirements of Order Granting Guardianship The Order included with Standard Form 12 includes the required elements found in O.C.G.A. § 29-4-13, but it should be modified as appropriate. For example, if there is a mediated resolution, the terms of the settlement should be incorporated into the Final Order. O.C.G.A. § 29-4-13 provides: (a) The court […]
Judicial review of pleadings and evaluation report; findings; hearing, O.C.G.A. § 29-4-12
Judicial Review of Pleadings and Evaluation Report The prejudice is that petitions for guardianship and conservatorship should be denied. That is why clear and convincing evidence is required before one may be imposed. In Bookholdt v. Brown, 224 Ga, 737 (1968), the Court said: “Among our most cherished rights, as American citizens, are the freedom […]
Prerequisite judicial finding of probable cause; notice; petition; evaluations; reporting requirements, O.C.G.A. § 29-4-11
Prerequisite Judicial Finding of Probable Cause The presumption under Georgia law is that a guardianship is unnecessary and should be dismissed unless clear and convincing evidence is produced to support prerequisite judicial findings. For that reason, subsection (b) requires dismissal if the Court’s initial review of the Petition finds there is no probable cause to […]
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 […]
