Probate Court’s Order on Emergency Guardianship is not appealable

On May 20, 2022, the Georgia Court of Appeals issued its Order in In re Estate of Brenda Elizabether Strother (Ward) (Appeal No. A22A0210). There, two daughters filed a petition for emergency guardianship, alleging two members of Brenda’s Jehovah’s Witness church (Robertson and Lewis), named in a 2020 advance directive were refusing to authorize emergency medical care necessary to keep Brenda alive.

On July 6, 2021, a notice of hearing was issued, serving Robertson and Lewis at their postal addresses. The hearing was notice for and held on July 9, 2021. Neither Robertson or Lewis attended. The Court granted the Petition for a 60-day emergency guardianship. It also revoked the prior advance directive pursuant to O.C.G.A. § 31-32-6(a)(4).

The court noted that Brenda’s attending physician testified that Brenda’s medical records, signed by her treating physician, reflected that Brenda had reported that her sister and daughter were her primary and backup healthcare agents, that she wanted to “update” her healthcare advance directive to name her daughter Candra as secondary instead of Nicole, and that she wanted “FULL interventions to extend life.

A week later, Robertson and Lewis appealed the Court’s order. The Court of Appealed found that the appeal was not properly filed. Code section 15-9-123(a) provides that “[e]ither party to a civil case in the probate court shall have the right of appeal to the . . . Court of Appeals from any decision made by the probate court, except an order . . . appointing an emergency guardian or emergency conservator, as provided by Chapter 6 or Title 5.”

Revocation of the advance directive did not change the nature of the proceeding. An advane directive “may be revoked . . . by the declarant.” OCGA § 31-32-6(a).In other words, this line in the probate court’s order is better construed not as a separate “ruling” revoking the advance directive (which the statute does not grant courts the power to do), but rather as a recognition that the declarant, Brenda Strother, revoked the 2020 advance directive by the method specified in subsection (a) (4) of the advance directive statute.

The appeal was dismissed with the Court noting that a motion for reconsideration is still pending before the probate Court.