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Georgia State Code
Title      29
Chapter       5  
Section Navigation        1 ... 9          10 ... 13      
Section1 2 3 4 5 5.1 6 7 8 9 >>>  
Title 29, Chapter 5, Section 6 (29-5-6)

(a)(1) Any interested person or persons, including the alleged incapacitated person, and including the Department of Human Resources in the case of an allegedly incompetent person who is receiving services from the department or whom the department believes to be eligible for such services, may file a petition under oath for the appointment of a guardian. The petition shall be filed with the probate court in the county where the alleged incapacitated person resides or is found, provided that the probate court of the county where the proposed ward is found shall not have jurisdiction to hear any guardianship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing such an action.

(2) The petition for the appointment of a guardian shall set forth:

(A) The name, age, address, and county of residence of the proposed ward, if known;

(B) The name, address, and county of residence of the petitioner;

(C) The relation of the petitioner to the proposed ward;

(D) A statement of the reasons the proposed guardianship is sought, including the facts which support the claim of incapacity;

(E) The type of and any foreseeable limits on duration of guardianship sought;

(F) The names and addresses of the spouse and all adult children of the proposed ward who are living and whose addresses are known; or, if none, then the names and addresses of the two next of kin who are living and whose addresses are known; or, if only one next of kin, then that one; or, if none, then the names and addresses of two adult friends;

(G) The names and addresses of the representatives of the alleged incompetent, if appointed under Code Sections 37-1-1 and 37-3-1 through 37-3-6 and Articles 2 through 6 of Chapter 3 of Title 37; Code Sections 37-4-1 through 37-4-3 and 37-4-5 through 37-4-8, Articles 2 through 5 of Chapter 4 of Title 37, and Code Section 37-5-3; or Code Sections 37-7-1, 37-7-2, and 37-7-4 through 37-7-7 and Articles 2 through 6 of Chapter 7 of Title 37 and known to petitioner;

(H) All known income and assets of the proposed ward and, in any case involving the creation or termination of a guardianship over property where the proposed ward has an interest in real property, the name of the county in which such property is located; and

(I) The name and address of any person or persons nominated by the petitioner or petitioners to serve as guardian and whether the person or persons have consented or will consent to serve as guardian. (3) In all cases, except those sworn to by two or more petitioners under oath and except those involving detention by a foreign power or disappearance, the petition shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43 or of a psychologist licensed to practice under Chapter 39 of Title 43 or, if the proposed ward is a patient in any federal medical facility in which neither such physician nor such psychologist is available, a physician authorized to practice medicine in that federal facility stating the physician has examined the proposed ward within ten days prior to the filing of the petition and that based on the examination the proposed ward was determined:

(A) To be incapacitated by reason of mental illness, mental retardation, mental disability, physical illness or disability, chronic use of drugs or alcohol, or other cause, to the extent that the person lacked sufficient understanding or capacity to make significant responsible decisions or the ability to communicate such decisions concerning his or her person;

(B) To be incapacitated by reason of mental illness, mental retardation, mental disability, physical illness or disability, chronic use of drugs or alcohol, or other cause, to the extent that the person is incapable of managing his or her estate; or

(C) To be incapacitated as indicated in both subparagraph (A) and subparagraph (B) of this paragraph.

(4) In addition to stating the specific incapacity of the proposed ward and the facts which support the determination, the affidavit shall state any foreseeable limits on the duration of such incapacity.

(b)(1) Upon the filing of the petition, the judge of the probate court shall review the petition and affidavit, if any, and determine whether there is sufficient evidence to believe that the proposed ward is incapacitated within the meaning of Code Section 29-5-1.

(2) If the judge of the probate court determines that there is such evidence, the judge shall:

(A) Immediately notify the proposed ward of the proceedings by personal service of all pleadings on the proposed ward by an officer of the court;

(B) Inform the proposed ward of the place and time at which the proposed ward shall submit to the evaluation provided for by subsection (c) of this Code section and of the right to independent counsel and that the court will appoint counsel within two days unless the proposed ward indicates that he or she has retained counsel by that time;

(C) Give notice of the petition by first-class mail to the spouse and all adult children of the proposed ward whose addresses are known; or, if none, order notice of the petition by first-class mail to the two next of kin whose addresses are known, or, if only one, then that one; or, if none, order notice of the petition by first-class mail to two adult friends of the ward; (D) Upon application of any interested person or on the court's own motion, consider whether to appoint a guardian ad litem, provided that the decision as to whether to appoint a guardian ad litem shall be in the sole discretion of the judge of the probate court; and

(E) Appoint a guardianship evaluation physician or psychologist as provided in subsection (c) of this Code section.

(3) If the probate court determines that there is insufficient evidence to believe that the proposed ward is incapacitated within the meaning of Code Section 29-5-1, the judge shall dismiss the petition and provide the proposed ward with a copy of the petition, affidavit, and order of dismissal.

(c)(1) The court shall, if the petition is not dismissed under paragraph (3) of subsection (b) of this Code section, appoint an evaluation physician or psychologist who shall be a physician licensed to practice medicine under Chapter 34 of Title 43 or a psychologist licensed to practice under Chapter 39 of Title 43 or, if the proposed ward is a patient in any federal medical facility in which neither such physician nor such psychologist is available, a physician authorized to practice medicine in that federal facility, other than the physician or psychologist who completed an affidavit attached to the petition pursuant to paragraph (3) of subsection (a) of this Code section.

(2) The physician or psychologist shall evaluate the proposed ward.

(3) The physician or psychologist shall explain the purpose of the evaluation to the ward. The proposed ward may remain silent. Any statements made by the proposed ward during the evaluation shall be privileged but such statements shall be competent evidence in a proceeding under this chapter only. The ward's attorney may be present but shall not participate in the evaluation.

(4) The evaluation shall be conducted with as little interference with the proposed ward's activities as possible. The evaluation shall take place at the place and time set in the notice to the proposed ward and the time set in the notice to the proposed ward shall not be sooner than the fifth day after service of the notice on the proposed ward. The judge of the probate court, however, shall have the exclusive power to change the date, place, and time of the examination at any time upon reasonable actual notice being given to the proposed ward and the attorney of the proposed ward. If the proposed ward fails to appear, the judge of the probate court may order that the proposed ward be taken directly to and from a medical facility or the office of the physician or psychologist for purposes of evaluation only. The evaluation shall be conducted during the normal business hours of the facility or office and the ward shall not be detained in the facility or office overnight.

(5) A written report shall be filed with the court no later than seven days after the date of the examination.

(6) The report shall be signed under oath by the physician or psychologist. It shall: (A) State the duration and circumstances of the evaluation, including a summary of questions or tests utilized;

(B) List all persons and other sources of information consulted in evaluating the proposed ward;

(C) Describe the proposed ward's mental and physical state and condition, including all observed facts considered by the physician or psychologist;

(D) Describe the overall social condition of the proposed ward, including support, care, education, and well-being; and

(E) Describe the needs of the proposed ward and their foreseeable duration.

(d) After the filing of the evaluation report, the probate court shall review the petition and the evaluation report.

(1) If, after the review, the court finds that there is probable cause to support a finding that the proposed ward is incapacitated within the meaning of Code Section 29-5-1, the probate court shall schedule a hearing on the petition. Notice of the hearing and a copy of the evaluation report shall be served by first-class mail upon the proposed ward and his attorney and his guardian ad litem, if any, and upon the petitioner or his attorney, if any. The date of the hearing shall be not less than ten days after the date notice is mailed. Either the proposed ward or the petitioner may file a written response to the evaluation report at any time up to the conclusion 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.

(2) If after the review the court finds that there is not probable cause to support a finding that the proposed ward is incapacitated within the meaning of Code Section 29-5-1, the probate court shall dismiss the petition.

(e)(1) The hearing shall be held in a regular courtroom, if available, or otherwise at such place as the judge may set. At the request of the proposed ward or the ward's attorney and for good cause shown, the public may be excluded and the appearance of the ward may be waived; in any case, the court shall utilize its discretion and the record shall reflect the reasons for the court's action.

(2) The hearing shall be either recorded by a sound-recording device and the tape retained for not less than 45 days or recorded by a certified court reporter.

(3) The court shall apply the rules of evidence applicable in civil cases. The proposed ward shall have the right to assistance of counsel and to subpoena and cross-examine witnesses, including the evaluation physician or psychologist. Upon agreement of the parties, evidence may be presented by deposition.

(4) The court shall utilize the criteria found in Code Sections 29-5-1 and 29-5-7 and shall make an independent determination of the need for a guardianship based upon the evaluation report, the response filed by the ward, and the evidence taken at the hearing. The burden of proof shall be upon the petitioner and the standard used by the court in reaching its decision shall be clear and convincing evidence.

(5) If the court determines that a guardian is necessary and the proposed ward is present, the court may inquire whether the proposed ward wishes to suggest any person as guardian.

(6) In any procedure under this chapter in which the judge of the probate court is unable to hear a case within the time required for such hearing, the judge shall appoint a person to serve and exercise all the jurisdiction of the probate court in the case. Any person so appointed shall be a member of the State Bar of Georgia who is, in the opinion of the appointing judge, otherwise qualified for his duties by training and experience. The appointment may be made on a case-by-case basis or by making a standing appointment of one or more persons. Any person receiving a standing appointment shall serve at the pleasure of the judge making the appointment or his successor in office, to hear such cases if and when necessary. The compensation of a person so appointed shall be as agreed upon by the judge who makes the appointment and the person appointed, with the approval of the governing authority of the county for which the person is appointed, and shall be paid from the county funds of said county. All fees collected for the services of the appointed person shall be paid into the general funds of the county served.

(f)(1) In its order the court shall set forth the findings of fact and conclusions of law which support the grant or denial of the petition. If a guardianship is granted, the order shall specify:

(A) The type of guardianship established, whether of the person or property, or both;

(B) The names of the guardian or guardians and the reason for their selection;

(C) The nature and extent of the ward's incapacity;

(D) Any rights or powers retained by the ward pursuant to subsection (d) or (e) of Code Section 29-5-7;

(E) The duration of the guardianship, whether limited or permanent;

(F) If separate guardians for the person and the property of the ward are appointed or if only a personal guardian is appointed, the reasonable sums or property to be provided the guardian of the person to provide adequately for the ward's support, care, education, and well-being, subject to modification by subsequent order of the court;

(G) The type and frequency of physical, mental, and social evaluations of the ward's condition which the court requires to supplement the reports submitted pursuant to paragraph (10) of subsection (b) of Code Section 29-5-3;

(H) Any reporting requirements in addition to those required by law; (I) Any bonding requirements in addition to those required by law;

(J) In any case involving the creation or termination of a guardianship over property where the proposed ward has an interest in real property, the name of the county in which such property is located; and

(K) Such other and further provisions of the guardianship as the court may deem proper.

(2) Service of the court's order shall be made by mail upon the ward; his attorney; his representatives; his guardian ad litem, if any; the guardian, if appointed; and the petitioner.

(3) After service of the court's order, the ward's counsel shall make reasonable efforts to explain the order and the ward's rights to him. If the ward desires to appeal the court's order, the attorney shall file such notice in the ward's behalf; and, if counsel was appointed by the probate court, the appointment shall continue on appeal to the superior court.

(4) In any case involving the creation of a guardianship over the property of an adult where the proposed ward owns real property, the judge or clerk of the probate court shall file, within 30 days after issuing the order granting such petition or terminating such guardianship during the ward's lifetime, a certificate with the clerk of the superior court of each county of this state in which such adult owns real property, to be recorded in the deed records for such county and indexed under the name of such adult in the grantor index to such records. The certificate shall set forth the name of such adult, the expiration date of such guardianship if limited by the court's order, the date on which the order granting such petition or terminating such guardianship issued, and, where a guardianship was created, the name of the guardian of the property who was appointed. The certificate which is required to be filed by this Code section shall be accompanied by the same fee required for the filing of deeds with the clerk of the superior court. The filing fee and any fee for the certificate shall be taxed as costs to the estate.

Saturday May 23 14:53 EDT


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