Process and Timeline for Georgia Guardianships and Conservatorships

Outline of Georgia Guardianship and Conservatorship Process and Timeline

Process Begins When Petition is filed

O.C.G.A. § 29-4-10(a). Any interested person, including the proposed ward, may file a petition for the appointment of a guardian. Such petition shall be filed in the court of the county in which:

(1) The proposed ward is domiciled;
(2) The proposed ward is found; provided, however, that if the court of the county where the proposed ward is found determines that the proposed ward was removed to such county solely for the purposes of filing a petition for the appointment of a guardian and that such court acquired jurisdiction to appoint a guardian because of unjustifiable conduct, such court may take any action authorized by Code Section 29-11-16; or
(3) Jurisdiction is otherwise proper under Code Section 29-11-12.

See See also O.C.G.A. § 29-5-10(a) for Conservators

If Petition is based on the affidavit of a physician, psychologist or licensed clinical social worker, the examination described in the affidavit must have taken place within 15 days prior to filing the petition. O.C.G.A. § 29-4-10(c)(2). See also O.C.G.A. § 29-5-10(c)(2) for Conservators.

Probate Court Reviews Petition for Sufficiency (Probable Cause)

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. O.C.G.A. § 29-4-11(a); See also O.C.G.A. § 29-5-11(a). If none, the Petition is dismissed. If probable cause exists, then…

Court Notifies Proposed Ward

Notice must:

(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

O.C.G.A. § 29-4-11(c)(1); See also O.C.G.A. § 29-5-11(c)(1)

Responsive Pleadings Due

Unless otherwise set by statute, responsive pleadings are generally due within 10 days after personal service or 13 days after service by mail. O.C.G.A. § 15-9-86.1

Other Adults Named in the Petition Served

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. O.C.G.A. § 29-4-11(c)(3) See also O.C.G.A. § 29-5-11(c)(3)

Prior Notice for Court Ordered Evaluation (at least 5 days)

The evaluation shall take place at the place and time set in the notice to the proposed ward and the 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. O.C.G.A. § 29-4-11(d)(3); See also O.C.G.A. § 29-5-11(d)(3)

Time to File Evaluation (7 days)

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, if any, the guardian ad litem. O.C.G.A. § 29-4-11(d)(4); See also O.C.G.A. § 29-5-11(d)(4)

Response to Evaluation

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. 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.

Court Review After Evaluation

After the filing of the evaluation report, the court shall review the pleadings and the evaluation report. O.C.G.A. § 29-4-12(a); See also O.C.G.A. § 29-5-12(a). If there is no probable cause to support a finding that a guardianship is needed, the Petition is dismissed. If there is probable cause, then…

Discovery and Motions

(A) In non-Article 6 Probate Courts, in order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay, and within two (2) months after the filing of the answer, unless for cause shown the time has been extended or shortened by court order.
(B) In Article 6 Probate Courts as defined in Rule 2.7, in order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay, and within six (6) months after the filing of the answer, objection, or other response. At any time, the court, in its discretion, may extend, reopen or shorten the time for discovery. Rule 7.1 of Uniform Probate Court Rules.
The timing requirements in the Civil Practice Act apply to all motions filed in Probate Court. See O.C.G.A. § 9-11-1.

Notice of Hearing

If, after the review, the court finds that there is probable cause to support a finding that the proposed ward is in need of a guardian, the court shall schedule a hearing on the petition. Notice of the hearing shall be served by first-class mail upon the proposed ward, the proposed ward’s legal counsel, and the proposed ward’s guardian ad litem, if any; the petitioner or the petitioner’s legal counsel, if any; and 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. The date of the hearing shall not be less than ten days after the notice is mailed. See also O.C.G.A. § 29-4-12(c); See also O.C.G.A. § 29-5-12(c).

Hearing (within 10 days of Notice)

The hearing shall be held in a courtroom or, for good cause shown, at such other place as the court may choose. At the request of the proposed ward or the proposed ward’s legal counsel and for good cause shown, the court may exercise its discretion to exclude the public from the hearing and the record shall reflect the court’s action. The proposed ward or the proposed ward’s legal counsel may waive the appearance of the proposed ward at the hearing. O.C.G.A. § 29-4-12(d)(1); See also O.C.G.A. § 29-5-12(d)(1). The court shall utilize the criteria in Code Section 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing. In addition, the court may consider the evaluation report and any response filed by the proposed ward. The burden of proof shall be upon the petitioner.

The criteria in Code Section 29-4-1 are: 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. The criteria in Code Section 29-5-1 regarding conservators are court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.

The kind of evidence petitioners must be prepared to present includes the proposed ward’s inability to:

  • understand information about a particular decision
  • remember that information long enough to make the decision
  • weigh up the information to make the decision, or
  • communicate their decision.

Two-Year Limitation on refiling:

O.C.G.A. § 29-4-1(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. See also O.C.G.A. § 29-5-1(d).

See also Georgia Guardianships & Conservatorships diagram

Selected Definitions from the Georgia Guardianship Code

O.C.G.A. § 29-1-1
(1) “Adult” means an individual who is either 18 years of age or older or an emancipated minor.
(2) “Conservator” includes a guardian of the property appointed prior to July 1, 2005, but shall not include a conservator of the estate of an individual who is missing or believed to be dead, as defined in Article 2 of Chapter 9 of Title 53 or a foreign conservator as defined in Part 4 of Article 10 of Chapter 3 and Part 4 of Article 13 of Chapter 5 of this title.
(4) “Court” means the probate court.
(7) “Guardian” means an individual appointed pursuant to the provisions of this title and includes a guardian of the person appointed prior to July 1, 2005, but shall not include a guardian ad litem.
(9) “Interested person” means any person who has an interest in the welfare of a minor, ward, or proposed ward, or in the management of that individual’s assets and may include a governmental agency paying or planning to pay benefits to that individual.
(11) “Minor” means an individual who is under 18 years of age and who is not emancipated.
(12) “Natural guardian” means an individual defined by the provisions of Code Section 29-2-3.
(13) “Parent” means a biological or adoptive father or mother whose parental rights have not been surrendered or terminated and, in the case of a child born out of wedlock, the individual or individuals who are entitled to have custody of and exercise parental power over the child pursuant to Code Section 19-7-25.
(14) “Permanent guardian” means an individual appointed as guardian of a minor pursuant to Part 5 of Article 1 of Chapter 2 of this title.
(15) “Personal representative” means an executor, administrator, successor, personal representative, or the duly qualified and acting personal representative of the estate of a decedent.
(16) “Proposed ward” means an adult for whom a petition for the appointment of a guardian or a conservator has been filed.
(20) “Sui juris” means an adult who is not suffering from any legal disability.
(27) “Ward” means an adult for whom a guardian or conservator has been appointed.

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