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 shall issue an order that sets forth the findings of fact and conclusions of law that support the grant or denial of the petition. An order granting guardianship shall specify:

Findings of Fact

In In re Estate of Jenkins, 366 Ga. App. 628 (2023), while the trial court sufficiently explained its “decision to refuse to appoint Mrs. Jenkins, we agree with Mrs. Jenkins that the order does not contain any findings or conclusions as to Wesley’s suitability to act as Mr. Jenkins’ guardian. While the trial court stated its conclusion that he is the person who would best serve the interest of Mr. Jenkins under OCGA § 29-4-3(a), that statement by itself is insufficient to set out the basis for Wesley’s appointment, and the order does not contain any supporting factual findings or any explanation for that conclusion.” The case was remanded with direction to prepare appropriate findings of fact to support the trial court’s decision.

In In re Phillips, No. A02A2368 (Oct. 9, 2002) (available on Lexis), the Court reversed where there was no recording because it could not determine whether the Court’s finding was supported by clear and convincing evidence. “Absent a record of the hearing, we cannot determine whether the probate court’s finding that Phillips was incapable of managing his estate was supported by clear and convincing evidence. Accordingly, because the probate court failed to have the hearing recorded or reported, we find that Phillips is effectively denied his right to appeal the probate court’s decision. We vacate in part the probate court’s order denying the guardian’s petition and remand this case for further proceedings on the issue of the guardianship as to Phillips’ property rights.” But see In re Guardianship of S.B. (Ohio).

(1) The name of the guardian and the basis for the selection;

(2) Any powers retained by the ward pursuant to Code Section 29-4-21;

(3) The limitations on the guardianship;

(4) A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are granted to the guardian;

(5) If only a guardian is appointed or if the guardian and the conservator appointed are not the same person, the reasonable sums of property to be provided the guardian to provide adequately for the ward’s support, care, education, health, and welfare, subject to modification by subsequent order of the court;

(6) The type and frequency of any physical, mental, and social evaluations of the ward’s condition which the court may require to supplement the reports submitted pursuant to paragraph (9) of subsection (a) of Code Section 29-4-22; and

(7) Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the ward, stating the reasons therefor.

Other Provisions

In In re Estate of Wertzer, 330 Ga. App. 294 (2014), the Court said “OCGA § 29-4-13(a) provides that the order granting or denying the guardianship “shall specify,” among other things, “(2) Any powers retained by the ward. . .; (3) The limitations on the guardianship;. . . [and] (7) Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the ward, stating the reasons therefor.” This included the power to establish a visitation schedule. “Accordingly, we find that the probate court had the authority to establish a set visitation schedule between Sierra and her father in order to protect Sierra’s rights and best interests.”

(b) Service of the court’s order shall be made by first-class mail upon the ward, the ward’s legal counsel, the guardian ad litem, if any, the guardian, the petitioner, and other persons designated for service of the petition for guardianship.

(c) After service of an order granting guardianship, the ward’s legal counsel shall make reasonable efforts to explain to the ward the order and the ward’s rights under the order.