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 proceed. However, once probable cause is found, the proceeding must move forward. In In re Estate of Davis, 330 Ga. App. 97 (2014) (discussed in our Guardianship Book), the Court of Appeals reversed the trial Court for dismissing a case after finding probable cause existed without requiring the evaluation described in subsection (d).
O.C.G.A. § 29-4-11 provides:
(a) Upon the filing of a petition for guardianship of a proposed ward, the court shall review the petition and the affidavit, if any, and determine whether there is probable cause to believe that the proposed ward is in need of a guardian within the meaning of Code Section 29-4-1.
(b) If the court determines that there is no probable cause to believe that the proposed ward is in need of a guardian, the court shall dismiss the petition and provide the proposed ward with a copy of the petition, the affidavit, if any, and the order dismissing the petition.
(c) If the court determines that there is probable cause to believe that the proposed ward is in need of a guardian:
(1) The court shall immediately notify the proposed ward of the proceedings by service of all pleadings on the proposed ward, which notice shall:
(A) Be served personally on the proposed ward by an officer of the court and shall not be served by mail;
(B) Inform the proposed ward that a petition has been filed to have a guardian appointed for the proposed ward, that the proposed ward has the right to attend any hearing that is held, and that, if a guardian is appointed, the proposed ward may lose important rights to control the management of the proposed ward’s person;
(C) Inform the proposed ward of the place and time at which the proposed ward shall submit to the evaluation provided for by subsection (d) of this Code section; and
(D) Inform the proposed ward of the proposed ward’s right to independent legal counsel and that the court shall appoint counsel within two days of service unless the proposed ward indicates that he or she has retained counsel in that time frame;
(2) Upon notice that the proposed ward has retained legal counsel or upon the appointment of legal counsel by the court, the court shall furnish legal counsel with a copy of the petition, the affidavit, if any, and the order for evaluation provided for by subsection (d) of this Code section;
(3) The court shall give notice of the petition by first-class mail to all adult individuals and other persons who are named in the petition pursuant to the requirements of paragraphs (7), (8), and (9) of subsection (b) of Code Section 29-4-10; and
(4) On the motion of any interested person or on the court’s own motion, the court shall determine whether to appoint a guardian ad litem.
(d)
(1) If the petition is not dismissed pursuant to subsection (b) of this Code section, the court shall appoint an evaluator who shall be a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social worker, or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker is not available, a physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker who is authorized to practice in such federal facility, other than the physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker who completed the affidavit attached to the petition pursuant to subsection (c) of Code Section 29-4-10.
(2) When evaluating the proposed ward, the physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker shall explain the purpose of the evaluation to the proposed ward. The proposed ward may remain silent. Any statements made by the proposed ward during the evaluation shall be privileged and shall be inadmissible as evidence in any proceeding other than a proceeding under this chapter. The proposed ward’s legal counsel shall have the right to be present but shall not participate in the evaluation.
(3) The evaluation shall be conducted with as little interference with the proposed ward’s activities as possible. The evaluation shall take place at the place and time set in the notice to the proposed ward and his or her legal counsel and the time set shall not be sooner than the fifth day after the service of notice on the proposed ward. The court, however, shall have the exclusive power to change the place and time of the examination at any time upon reasonable notice being given to the proposed ward and to his or her legal counsel. If the proposed ward fails to appear, the court may order that the proposed ward be taken directly to and from a medical facility or the office of the physician, psychologist, physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor, or licensed clinical social worker for purposes of evaluation only. The evaluation shall be conducted during the normal business hours of the facility or office and the proposed ward shall not be detained in the facility or office overnight. The evaluation may include, but not be limited to:
(A) A self-report from the proposed ward, if possible;
(B) Questions and observations of the proposed ward to assess the functional abilities of the proposed ward;
(C) A review of the records for the proposed ward, including, but not limited to, medical records, medication charts, and other available records;
(D) An assessment of cultural factors and language barriers that may impact the proposed ward’s abilities and living environment; and
(E) All other factors the evaluator determines to be appropriate to the evaluation.
(4) A written report shall be filed with the court no later than seven days after the evaluation, and the court shall serve a copy of the report by first-class mail upon the proposed ward and the proposed ward’s legal counsel and guardian ad litem if appointed.
(5) The report shall be signed under oath by the evaluator and shall:
(A) State the circumstances and duration of the evaluation, including a summary of questions or tests utilized, and the elements of the evaluation;
(B) List all persons and other sources of information consulted in evaluating the proposed ward;
(C) Describe the proposed ward’s mental and physical state and condition, including all observed facts considered by the evaluator;
(D) Describe the overall social condition of the proposed ward, including support, care, education, and well-being; and
(E) Describe the needs of the proposed ward and their foreseeable duration.
(6) The proposed ward’s legal counsel may file a written response to the evaluation, provided the response is filed no later than the date of the commencement of the hearing on the petition for guardianship. The response may include, but is not limited to, independent evaluations, affidavits of individuals with personal knowledge of the proposed ward, and a statement of applicable law. In the response, the proposed ward’s legal counsel may also challenge 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.
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