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 […]
Order of preference in selection of guardians; written request nominating guardian; requirements of writing, O.C.G.A. § 29-4-3
The ultimate test in determining who should be appointed as guardian is “who will best serve the interest of the adult.” There is, however, a priority list. Certain persons, if they seek to be appointed, may only be disregarding “upon good cause shown.” Since most guardianship hearings are audio recorded, caseful counsel will want to […]
Qualifications of guardians selected for adults, O.C.G.A. § 29-4-2
Only individuals or the Department of Human Services may serve as guardian. Although not expressly spelled out, only someone capable of fulfilling the duties of a guardian may serve, as explained in In re Estate of Jenkins, 366 Ga. App. 628 (2023). O.C.G.A. § 29-4-2 provides: (a) Only an individual may serve as guardian of […]
Prerequisite findings prior to appointment of guardian for adult; extent of guardianship, O.C.G.A. § 29-4-1
In Georgia, when determining whether a guardianship is necessary, the Court looks solely at capacity. Disability alone is not sufficient to impose a guardianship. There is no presumption that a guardianship is necessary. The appointment of a guardian must be in the Ward’s best interests. Further, Courts are required to structure the guardianship to encourage […]
Georgia Guardianship and Conservatorship, OCGA 29-1-1
Last updated 9/2/2025 Georgia Guardianship and Conservatorship When interpreting Georgia’s Guardianship and Conservatorship Code, definitions are critical. In Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012), the Georgia Supreme Court said “[T]he fundamental rules of statutory construction … require us to construe a statute according to its terms, to give words their plain […]
Probate Court properly exercised its discretion disregarding spouse’s statutory priority as guardian
In In re Estate of Jenkins, 366 Ga. App. 628 (2023), Gary Jenkins was living in an assisted living facility due to his severe memory and mental health problems. His spouse filed a Petition for Guardianship and Conservatorship after Mr. Jenkins impersonated a police officer and, as a result, was admitted to a memory care […]
Attorney’s fees can be awarded for frivolous claims and defenses in Probate Cases
The general rule is that “an award of attorney fees and expenses of litigation are not available to a prevailing party unless authorized by statute or contract.” Cary v. Guiragossian, 270 Ga. 192, 195(4), 508 S.E.2d 403 (1998). Georgia law generally follows federal law, allowing the Court to sanction parties and their attorneys for frivolous claims, defenses […]
What is Clear and Convincing Evidence?
In many cases in involving the Probate Court, the moving party must present clear and convincing evidence to prevail. But what does that mean? The standard was explained (at least in part) in In re Knight, 372 Ga. App. 485 (2024). Lillian Knight passed away, naming her daughter, Karen, as executor. Prior to her death, […]
There is no right to appeal a non-final Guardianship Order
In In re Bruni, 369 Ga. App. 488 (2023), the adult children of a proposed ward filed a petition for guardianship and conservatorship, and later filed an emergency petition. The proposed ward’s wife had been liquidating the proposed ward’s assets and lost $220,000 in one transaction. As a result the Probate Court “appointed an emergency […]
The person nominated by a proposed ward as Guardian or Conservator is not required to file pleadings to be considered
In In Re Estate of Kurtzman, 366 Ga. App. 725 (2023), Bette Kurtzman, 85 years old, had dementia and was residing in an assisted living facility. In December of 2020, Kurtzman’s daughter, Amy, and brother, Myron, filed a Petition for Guardianship and Conservatorship. Bette Kurtzman objected to the petition, alleging she had nominated her son, […]
Expert Testimony
As an initial proposition, all relevant evidence is admissible. See Federal Rules of Evidence, Rule 402. In 1993, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Since then, expert testimony (subject to Rule 702) is not relevant unless it is “(1) scientific knowledge that (2) will assist the […]
2025 Legislative Changes to Georgia’s Guardianship and Conservatorship Law
2025 Legislative Changes During its 2025 session, the Georgia Legislature passed, and the Governor signed, two new laws impacting guardianships and conservatorships in Georgia. The first was HB 36. The second was SB 98. Both laws become effective July 1, 2025. HB 36 Code Section 29-4-1 now expressly provides there is no presumption that a […]
Planning for Adult Children with Disabilities
Planning for Adult Children with Disabilities Childhood Disability Benefits assist disabled children and adults who became disabled prior to age 22. Most begin with Supplemental Security Income, which is a monthly cash payment for individuals with limited income and few resources. Because a parent’s income and resources are usually deemed available to the child, SSI […]
Oath for Georgia Guardians and Personal Representatives
Before a guardian or the personal representative of an estate takes office, he or she must take an oath. The form is a standard form and can be found here. The oath is usually made in front of the Probate Judge or a clerk with the probate court, but it can be taken out of […]
Probate Court Reversed for Ordering Conservatorship Accounting Before Determining Identity of Estate’s Personal Representative
The Georgia Court of Appeals decided the case of In re Bessie Mae Blake on February 20, 2024. Willis Blake was appointed as his mother’s conservator in 2000, but he was a poor record keeper. Although he was required to set up a separate account for Bessie Mae, keep records of expenses and file annual […]
Guardianship Evaluation is Admissible Regardless of Stipulation
Guardianship Evaluation In most cases I’ve been involved in, the evaluator’s report is stipulated into evidence or the evaluator is called as a witness. The reason is that the report cannot be cross-examined so the thought was that it’s subject to a hearsay objection. A recent case taught me otherwise (at least in Georgia). In […]
Georgia Court of Appeals Revisits the Preponderance-of-the-Evidence Standard
In White v. Stanley (Georgia Ct. App. 10/3/2023), Rhonda White appealed a jury verdict in favor of the defendants relating to a motor vehicle collision. White argued that the trial court gave an improper jury instruction regarding the Preponderance-of-the-Evidence Standard. The trial court instructed the jury using the existing pattern jury instructions. However, the law […]
Sometimes You Must Say No
Sometimes you just have to say No “No” isn’t a four-letter word. Saying “no” isn’t necessarily bad and you shouldn’t feel bad when you say it. Part of saying no means taking a stand. It can mean standing up to injustice. For example, our legal system is, for the most part, dependent on people saying […]
Family Acrimony Deemed Sufficient to Disregard Nomination of Guardian
In In re Wheeler (Ga. Ct. App. 6/6/2023), the Court of Appeals upheld the Probate Court’s decision that (1) there was sufficient evidence to impose a guardianship and conservatorship, and (2) that a neutral third-party be appointed as guardian instead of the person nominated by the ward. Because the reasoning in this case is “thin,” […]
Approving Settlements for Minors
In April, 2022, we reported that HB 620 altered how settlements for minors can be approved under O.C.G.A. § 29-3-3, at least in cases where the trial court approves direct payment to a trust. Prior to passage of HB 620, Section 29-3-3 read as follows: 2021 Version For purposes of this Code section, the term […]
Elder Law Mishmash June 2023
The following is a mishmash of information on various Elder Law, Special Needs Law, and Estate Planning issues. It also includes anything else we found interesting during the month of June, 2023. We will continue updating from time to time throughout the month. Last updated 6/8/2023. Keep in mind, you are using linked content at […]
Failure to Admit Evaluator’s Report Required Reversal of Conservatorship Order
Ms. Humprey was a hospital patient and the University of Tennessee Medical Center filed a petition for Conservatorship. The petition alleged she was unable to make appropriate decisions regarding her treatment and medical care. Petitioner attached the report of Dr. Taylor Wright in support of its petition. The Court appointed a guardian ad litem and […]
Ohio Court of Appeals Affirms Appointment of Guardian Despite Questionable Transcript from Probate Court Hearing
On September 15, 2022, the Ohio Court of Appeals affirmed a Probate Court decision appointing a guardian despite a spotty record of the proceedings below. In In re Guardianship of S.B., the proposed was suffered a traumatic brain injury. In 2004, the ward’s father filed a petition for guardianship and was appointed guardian. In 2007, […]
Conservator has exclusive power to bring, defend or participate in lawsuits for a ward
in Hall v. Davis Lawn Care Service, Inc., 314 Ga. 488 (S22G0019 8/23/2022), the Supreme Court unravelled some messy litigation where a conservator was appointed for a minor, but was deemed by the lower courts as having forfeited his exclusive power to bring, defend or participate in legal proceedings for his ward pursuant to OCGA […]
Form: Consent to Criminal Background Check
Below is an exemplar consent to a criminal background check. These are required in most guardianship cases and some probate cases.
How to Communicate with Courts, Parties in Litigation and Others
There are times when formal “legal” communication is necessary. This post addresses several instances regarding how that can be done. It is not meant to be all inclusive and, in many cases, specific communication rules apply. Beginning a lawsuit: When you begin a lawsuit, a summons must be served on the Defendant(s). Generally, Rule 4 […]
Probate Court must make findings of fact and conclusions of law when requested
In the Estate of T.M.N. (Ga. Ct. App. 6/13/2022), Quanda Jessie served as conservator of her minor child’s estate and had done so since 2016. The primary asset in the conservatorship estate was a wrongful death recovery, although Social Security survivor’s benefits were also paid to the child. Jessie updated the asset management plan and […]
Conservator’s settlement for minor children upheld
In Smith v. Parks Hotels & Resorts, Inc. (Georgia Ct. App. June 8, 2022), the mother of five children was killed by her boyfriend while she was cleaning a room as a Hilton employee. The probate court appointed a conservator for the minor children who filed a Worker’s Compensation claim. The claim was settled for […]
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 […]
Elder Law and Special Needs Law News Roundup – 5-20-2022
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
Appeal Challenging Georgia’s Equitable Caregiver Statute was moot
In McAlister v. Clifton (Ga. 4/19/2022), the Georgia Supreme Court heard a case challenging the equitable caregiver statute, O.C.G.A. § 19-7-3.1. There, the trial court awarded Wendi Clifton, McAlister’s domestic partner, visitation rights to McAlister’s adopted daughter, Catherine. McAlister contended the equitable caregiver statute was unconstitutional facially and as applied to Clifton. McAlister also appealed […]
News Roundup – 2/25/2022
February is American Heart Month! Read President Biden’s Proclamation on American Healrth Month 2022 We regularly post links to news articles and other resources we believe might be of interest to our viewers. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. […]
Form: Guardian’s Personal Status Report
Guardians must file a personal status report within sixty (60) days after appointment, and then annually, reporting the ward’s location, condition and any unmet needs. Although these forms tend to vary from court to court, unless the court directs that a different form be used, the following is an example of what guardians must file: […]
Form: Conservator’s Annual Return (or Final Return)
Initially, a conservator must file an inventory and asset management plan within 60 days after appointment. Each year a conservator must file an annual return and a final return must be filed when the conservatorship terminates (or when after the ward’s death). Unless the applicable Probate Court directs that a different form be used, the […]
Appeal Route From Article 6 Probate Court is to Court of Appeals
Appeal Route From Article 6 Probate Court In Spence v. Dep’t of Behavioral Health and Developmental Disabilities, 359 Ga. App. 603 (2021), Jermaine Spense was involuntarily committed as a hospital inpatient. Spence sought review after the Department sought an order of continued hospitalization of Spence pursuant to OCGA § 37-3-83. On April 18, 2019, the […]
Conservator/County Administrator appointed ex-officio administrator of ward’s estate
In In re Estate of Brown, 357 Ga. App. 869, 850 S.E.2d 503 (2020), the Fulton County Probate Court appointed Ann Herrera as conservator for Leon Brown in 2011. After Brown died, Herrera filed a petition for letters of administration and Brown’s sister, Linda Glover, objected. Glover argued that Brown was a resident of Henry […]
Form: Health Values Questionnaire
In addition to a health care advance directive, one way to create evidence regarding your health treatment wishes and end-of0life wishes is to complete a health values questionnaire. One of the issues in Cruzan and Schiavo was the absence of adequate evidence demonstrating what the patient would want if she could speak for herself. Wouldn’t […]
Probate Court May Restrict a Conservator’s Power to Spend Ward’s Income
In In re Estate of Jenkins, 358 Ga. App. 254 (2021), the ward (Shaun Jenkins) sustained profound injuries as an infant due to malpractice. Jenkins received a settlement giving him annual income of $337,000 (or about $28,000 per month). The probate court limited the Conservator’s spending to $17,000. In 2019, the Conservator purchased a disabled-accessible […]
Form: Georgia Conservator’s Return
In Georgia, a Conservator must file an annual return and a final return. The current form appears below. For the most part, this form requires a check-book type entry, listing all funds coming in and all funds going out. One mistake many conservators make which adds to the book-keeping burden is maintaining multiple accounts. Multiple […]
Standby Guardians
A parent or a guardian (each a “designated individual”) may appoint a standby guardian of a minor. O.C.G.A. § 29-2-10. Upon determination that the designating individual is unable to care for the minor, the standby guardian, without judicial intervention, may assume all rights, duties and responsibilities of guardianship of the minor. The standby guardian must […]
Involuntary Hospitalization and Treatment of Involuntary Patients
The procedure commonly referred to as a “1013” is governed by O.C.G.A. Title 37, Chapter 3 (§ 37-3-41 et seq).* The procedure applies to individuals who present a substantial risk of imminent harm to himself, herself or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability […]
