This page, which we call our Guardianship book, and the related Chapter pages, are an update and revision of a paper originally prepared for presentation at the National Aging & Law Institute in Washington, D.C., November 8-10, 2012. We have updated this material several times. The research included cases found in Lexis’s State Court case library using the following search: HEADNOTES(guardian or guardianship or conservator or conservatorship) and CORE-TERMS(guardianship or conservatorship) and date(geq (4/1/2012) and leq (1/20/2015)). The original presentation included video clips from interviews with Judge Sheri Blevins (Probate Court Judge, Whitfield County, Georgia), Larry Winter, CPA, and Professor Mary Radford (Georgia State University College of Law). In 2015, the video component was replaced with a teaching video showing, essentially, what “not to do” when trying a guardianship or conservatorship case. The 2015 video, based loosely on the facts in Johnson v. Mitchell, 2013 Ark. App. 498 (2013), is available on YouTube and is embedded below:
Preface:
The primary purpose of a guardianship or conservatorship is to protect a class of citizens who are incapable of fully protecting themselves. In re Conservatorship of Smith, 655 N.W.2d 814 (Minn. App. 2003); In re Link, 713 S.W. 2d 487 (Mo. 1986). Guardianships and conservatorships are court proceedings which, when approved, implement the concept of parens patriae. (Note 1) They include “front end” procedures (associated with due process when the petition is considered) and “back end” procedures (associated with guardian oversight) (Note 2). By contrast, a power of attorney or an advance directive for health care documents a voluntary agency relationship between a principal and his or her agent; those relationship can be terminated at will by a principal with capacity. Because a guardianship or conservatorship is created by the court, it is not voluntary and can only be terminated as provided for in the guardianship and conservatorship law.
“Conservatorship proceedings provide a forum for determining whether a person’s ability to remain autonomous has become impaired. Even though these proceedings are intended to promote the best interests of the vulnerable elderly (Note 3), they carry with them the real possibility of displacing the elderly person’s ability to make even the most basic decisions for themselves and to live their lives unfettered by the control of others. Persons who are the subject of a conservatorship face a substantial loss of freedom, that resembles the loss of freedom following a criminal conviction.” In re Conservatorship of Groves, 109 S.W.3d 317, 329 (2003) (citations omitted) (Note 4).
In Georgia (Note 5), the guardianship process is the exclusive method for appointing a guardian other than a guardian ad litem. O.C.G.A. § 29-4-1(b) (Note 6). The conservatorship process is the exclusive means for appointing a conservator, except a conservator for the estate of an individual who is missing or believed to be dead. O.C.G.A. § 29-5-1(b). If the Petition is uncontested, then the formalities must be followed, but the process can be completed, in most cases, within about four weeks. When the case is contested, a guardianship or conservatorship may seem like divorce litigation on steroids.
Not all rights are taken from a ward. Since 2005, Georgia Courts are required to limit a guardianship or conservatorship to the least restrictive means of protecting the ward. Further, even after a guardianship or conservatorship is imposed, a ward has the right to:
(1) a qualified guardian who acts in the best interest of the ward;
(2) A guardian who is reasonably accessible to the ward;
(3) Have the ward’s property utilized to provide adequately for the ward’s support, care, education, health, and
welfare;
(4) Communicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction;
(5) Individually, or through the ward’s representative or legal counsel, bring an action relating to the guardianship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by this chapter and Chapter 5 of this title and including the right to bring an action to modify or terminate the guardianship pursuant to the provisions of Code Sections 29-4-41 and 29-4-42;
(6) The least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences (Note 7); and
(7) Be restored to capacity at the earliest possible time. O.C.G.A. § 29-4-20 (Note 8).
The appointment of a guardian is not a determination regarding the right of the ward to vote. The appointment of a guardian is not a determination that the ward lacks testamentary capacity. O.C.G.A. § 29-4-20.
Chapters:
- Chapter 1: Terminology, and “Who is the Client?”
- Chapter 2: Initiating the Action and Overview
- Chapter 3: Issues Typically Contested
- Chapter 4: Presenting the Case and Development of Evidence
- Chapter 5: Anticipating Appeals
- Chapter 6: Post Appointment “Back-End” Issues
- Chapter 7: Termination Issues
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 […]
