23 LC 48 0875S
H. B. 291 (SUB)
- 1 -
House Bill 291 (COMMITTEE SUBSTITUTE)
By: Representatives Scoggins of the 14
th
, Smith of the 18
th
, and Oliver of the 82
nd
A BILL TO BE ENTITLED
AN ACT
To amend Title 29 of the Official Code of Georgia Annotated, relating to guardian and ward,
1
so as to add to the list of providers who are authorized to participate in the processes for2
appointment of a guardian for an adult, the modification and termination of such3
guardianship, and the appointment of emergency guardian; to add to the list of providers who4
are authorized to participate in the processes for appointment of a conservator for an adult,5
the modification and termination of such conservatorship, and the appointment of emergency6
conservator; to provide for limitations on the powers and duties of certain emergency7
conservators; to revise and provide for definitions; to provide for related matters; to repeal8
conflicting laws; and for other purposes.9
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:10
SECTION 1.11
Title 29 of the Official Code of Georgia Annotated, relating to guardian and ward, is12
amended by revising paragraph (10) and adding a new paragraph to Code Section 29-1-1,13
relating to definitions, to read as follows:14
"(10) 'Licensed clinical social worker' means a social worker who is licensed as such
in15
accordance with the provisions of Chapter 10A of Title 43.16 23 LC 48 0875S
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(10.1) 'Licensed master's social worker' means a social worker who is licensed as such17
in accordance with the provisions of Chapter 10A of Title 43."18
SECTION 2.19
Said title is further amended in Code Section 29-4-10, relating to petition for appointment20
of guardian and requirements for petition, by revising paragraph (1) of subsection (c) as21
follows:22
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported23
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,;24
a psychologist licensed to practice under Chapter 39 of Title 43,; an advanced practice25
registered nurse, licensed practical nurse, or registered professional nurse licensed to26
practice under Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of27
Title 43; or a licensed clinical social worker, licensed master's social worker, licensed28
marriage and family therapist, or professional counselor licensed under Chapter 10A of29
Title 43, or, if the proposed ward is a patient in any federal medical facility in which such30
a physician, psychologist, or advanced practice registered nurse, licensed practical nurse,31
registered professional nurse, physician assistant, licensed clinical social worker, licensed32
master's social worker, licensed marriage and family therapist, or professional counselor33
is not available, a physician, psychologist, or advanced practice registered nurse, licensed34
practical nurse, registered professional nurse, physician assistant, licensed clinical social35
worker, licensed master's social worker, licensed marriage and family therapist, or36
professional counselor who is authorized to practice in that such federal facility."37
SECTION 3.38
Said title is further amended in Code Section 29-4-11, relating to prerequisite judicial finding39
of probable cause, notice, petition, evaluations, and reporting requirements for appointment40
for guardians for adults, by revising subsection (d) as follows:41 23 LC 48 0875S
H. B. 291 (SUB)
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"(d)(1) If the petition is not dismissed under pursuant to subsection (b) of this Code42
section, the court shall appoint an evaluating physician evaluator who shall be a physician43
licensed to practice medicine under Chapter 34 of Title 43,; a psychologist licensed to44
practice under Chapter 39 of Title 43,; an advanced practice registered nurse, licensed45
practical nurse, or registered professional nurse licensed to practice under Chapter 26 of46
Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical47
social worker, licensed master's social worker, licensed marriage and family therapist, or48
professional counselor licensed under Chapter 10A of Title 43, or, if the proposed ward49
is a patient in any federal medical facility in which such a physician, psychologist, or50
advanced practice registered nurse, licensed practical nurse, registered professional nurse,51
physician assistant, licensed clinical social worker, licensed master's social worker,52
licensed marriage and family therapist, or professional counselor is not available, a53
physician, psychologist, or advanced practice registered nurse, licensed practical nurse,54
registered professional nurse, physician assistant, licensed clinical social worker, licensed55
master's social worker, licensed marriage and family therapist, or professional counselor56
who is authorized to practice in that such federal facility, other than the physician,57
psychologist, or advanced practice registered nurse, licensed practical nurse, registered58
professional nurse, physician assistant, licensed clinical social worker, licensed master's59
social worker, licensed marriage and family therapist, or professional counselor who60
completed the affidavit attached to the petition pursuant to subsection (c) of Code Section61
29-4-10.62
(2) When evaluating the proposed ward, the physician, psychologist, or advanced63
practice registered nurse, licensed practical nurse, registered professional nurse, physician64
assistant, licensed clinical social worker, licensed master's social worker, licensed65
marriage and family therapist, or professional counselor shall explain the purpose of the66
evaluation to the proposed ward. The proposed ward may remain silent. Any statements67
made by the proposed ward during the evaluation shall be privileged and shall be68 23 LC 48 0875S
H. B. 291 (SUB)
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inadmissable as evidence in any proceeding other than a proceeding under this chapter.
69
The proposed ward's legal counsel shall have the right to be present but shall not70
participate in the evaluation.71
(3) The evaluation shall be conducted with as little interference with the proposed ward's72
activities as possible. The evaluation shall take place at the place and time set in the73
notice to the proposed ward and the
his or her legal counsel and the time set shall not be74
sooner than the fifth day after the service of notice on the proposed ward. The court,75
however, shall have the exclusive power to change the place and time of the examination76
at any time upon reasonable notice being given to the proposed ward and to his or her77
legal counsel. If the proposed ward fails to appear, the court may order that the proposed78
ward be taken directly to and from a medical facility or the office of the physician,79
psychologist, or advanced practice registered nurse, licensed practical nurse, registered80
professional nurse, physician assistant, licensed clinical social worker, licensed master's81
social worker, licensed marriage and family therapist, or professional counselor for82
purposes of evaluation only. The evaluation shall be conducted during the normal83
business hours of the facility or office and the proposed ward shall not be detained in the84
facility or office overnight. The evaluation may include, but not be limited to:85
(A) A self-report from the proposed ward, if possible;86
(B) Questions and observations of the proposed ward to assess the functional abilities87
of the proposed ward;88
(C) A review of the records for the proposed ward, including, but not limited to,89
medical records, medication charts, and other available records;90
(D) An assessment of cultural factors and language barriers that may impact the91
proposed ward's abilities and living environment; and92
(E) All other factors the evaluator determines to be appropriate to the evaluation.93
(4) A written report shall be filed with the court no later than seven days after the94
evaluation, and the court shall serve a copy of the report by first-class mail upon the95 23 LC 48 0875S
H. B. 291 (SUB)
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proposed ward and the proposed ward's legal counsel and, if any, the guardian ad litem96
if appointed.97
(5) The report shall be signed under oath by the physician, psychologist, or licensed98
clinical social worker evaluator and shall:99
(A) State the circumstances and duration of the evaluation, including a summary of100
questions or tests utilized, and the elements of the evaluation;101
(B) List all persons and other sources of information consulted in evaluating the102
proposed ward;103
(C) Describe the proposed ward's mental and physical state and condition, including104
all observed facts considered by the physician or psychologist or licensed clinical social105
worker evaluator;106
(D) Describe the overall social condition of the proposed ward, including support, care,107
education, and well-being; and108
(E) Describe the needs of the proposed ward and their foreseeable duration.109
(6) The proposed ward's legal counsel may file a written response to the evaluation,110
provided the response is filed no later than the date of the commencement of the hearing111
on the petition for guardianship. The response may include, but is not limited to,112
independent evaluations, affidavits of individuals with personal knowledge of the113
proposed ward, and a statement of applicable law."114
SECTION 4.115
Said title is further amended in Code Section 29-4-14, relating to petition for appointment116
of emergency guardian of an adult and requirements of petition, by revising paragraph (1)117
of subsection (d) as follows:118
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported119
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,;120
a psychologist licensed to practice under Chapter 39 of Title 43,; an advanced practice121 23 LC 48 0875S
H. B. 291 (SUB)
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registered nurse, licensed practical nurse, or registered professional nurse licensed to122
practice under Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of123
Title 43; or a licensed clinical social worker, licensed master's social worker, licensed124
marriage and family therapist, or professional counselor licensed under Chapter 10A of125
Title 43; or, if the proposed ward is a patient in any federal medical facility in which such126
a physician, psychologist, or advanced practice registered nurse, licensed practical nurse,127
registered professional nurse, physician assistant, licensed clinical social worker, licensed128
master's social worker, licensed marriage and family therapist, or professional counselor129
is not available, a physician, psychologist, or advanced practice registered nurse, licensed130
practical nurse, registered professional nurse, physician assistant, licensed clinical social131
worker, licensed master's social worker, licensed marriage and family therapist, or132
professional counselor authorized to practice in that such federal facility."133
SECTION 5.134
Said title is further amended in Code Section 29-4-15, relating to prerequisite findings prior135
to appointment of emergency guardian, evaluation, notice, and hearing, by revising136
subsection (c) as follows:137
"(c) If the court determines that there is probable cause to believe that the proposed ward138
is in need of an emergency guardian, the court shall:139
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency140
hearing, which counsel may be the same counsel who is appointed to represent the141
proposed ward in the hearing on the petition for guardianship or conservatorship, if any142
such petition has been filed, and shall inform counsel of the appointment;143
(2) Order an emergency hearing to be conducted not sooner than three days nor later than144
five days after the filing of the petition;145
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be146
a physician licensed to practice medicine under Chapter 34 of Title 43,; a psychologist147 23 LC 48 0875S
H. B. 291 (SUB)
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licensed to practice under Chapter 39 of Title 43,; an advanced practice registered nurse,148
licensed practical nurse, or registered professional nurse licensed to practice under149
Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a150
licensed clinical social worker, licensed master's social worker, licensed marriage and151
family therapist, or professional counselor licensed under Chapter 10A of Title 43, other152
than the physician, psychologist, or advanced practice registered nurse, licensed practical153
nurse, registered professional nurse, physician assistant, licensed clinical social worker,154
licensed master's social worker, licensed marriage and family therapist, or professional155
counselor who completed the affidavit attached to the petition pursuant to paragraph (1)156
of subsection (d) of Code Section 29-4-10. The evaluation shall be conducted within 72157
hours of the time the order was issued and a written report shall be furnished to the court158
and made available to the parties within this time frame, which evaluation and report159
shall be governed by the provisions of subsection (d) of Code Section 29-4-11;160
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings161
on the proposed ward, which notice shall:162
(A) Be served personally on the proposed ward by an officer of the court and shall not163
be served by mail;164
(B) Inform the proposed ward that a petition has been filed to have an emergency165
guardian appointed for the proposed ward, that the proposed ward has the right to attend166
any hearing that is held, and that, if an emergency guardian is appointed, the proposed167
ward may lose important rights to control the management of the proposed ward's168
person;169
(C) Inform the proposed ward of the place and time at which the proposed ward shall170
submit to the evaluation provided for by paragraph (3) of this subsection;171
(D) Inform the proposed ward of the appointment of legal counsel; and172
(E) Inform the proposed ward of the date and time of the hearing on the emergency173
guardianship; and174 23 LC 48 0875S
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(5) Appoint an emergency guardian to serve until the emergency hearing, with or without
175
prior notice to the proposed ward, if the threatened risk is so immediate and the potential176
harm so irreparable that any delay is unreasonable and the existence of the threatened risk177
and potential for irreparable harm is certified by the affidavit of a physician licensed to178
practice medicine under Chapter 34 of Title 43,
; a psychologist licensed to practice under179
Chapter 39 of Title 43,; an advanced practice registered nurse, licensed practical nurse,180
or registered professional nurse licensed to practice under Chapter 26 of Title 43; a181
physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical social182
worker, licensed master's social worker, licensed marriage and family therapist, or183
professional counselor licensed under Chapter 10A of Title 43. Appointment of an184
emergency guardian under this paragraph is not a final determination of the proposed185
ward's need for a nonemergency guardian. Any emergency guardian appointed under this186
paragraph shall have only those powers and duties specifically enumerated in the letters187
of emergency guardianship, and the powers and duties shall not exceed those absolutely188
necessary to respond to the immediate threatened risk to the ward."189
SECTION 6.190
Said title is further amended in Code Section 29-4-41, relating to modification of191
guardianship, by revising subsection (b) as follows:192
"(b) If the petition for modification alleges a significant change in the capacity of the ward,193
it must be supported either by the affidavits of two persons who have knowledge of the194
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine195
under Chapter 34 of Title 43,; a psychologist licensed to practice under Chapter 39 of Title196
43,; an advanced practice registered nurse, licensed practical nurse, or registered197
professional nurse licensed to practice under Chapter 26 of Title 43; a physician assistant198
licensed under Chapter 34 of Title 43; or a licensed clinical social worker, licensed master's199
social worker, licensed marriage and family therapist, or professional counselor licensed200 23 LC 48 0875S
H. B. 291 (SUB)
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under Chapter 10A of Title 43, setting forth the supporting facts and determinations. If,201
after reviewing the petition and the affidavits, the court determines that there is no probable202
cause to believe that there has been a significant change in the capacity of the ward, the203
court shall dismiss the petition. If the petition is not dismissed, the court shall order that204
an evaluation be conducted, in accordance with the provisions of subsection (d) of Code205
Section 29-4-11. If, after reviewing the evaluation report, the court finds that there is no206
probable cause to believe that there has been a significant change in the capacity of the207
ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall208
schedule a hearing, with notice as the court deems appropriate."209
SECTION 7.210
Said title is further amended in Code Section 29-4-42, relating to termination of211
guardianship, required evidence, burden of proof, and return of property, by revising212
subsection (b) as follows:213
"(b) A petition for termination must be supported either by the affidavits of two persons214
who have knowledge of the ward, one of whom may be the petitioner, or of a physician215
licensed to practice medicine under Chapter 34 of Title 43,; a psychologist licensed to216
practice under Chapter 39 of Title 43,; an advanced practice registered nurse, licensed217
practical nurse, or registered professional nurse licensed to practice under Chapter 26 of218
Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical219
social worker, licensed master's social worker, licensed marriage and family therapist, or220
professional counselor licensed under Chapter 10A of Title 43, setting forth the supporting221
facts and determinations. If, after reviewing the petition and the affidavits, the court222
determines that there is no probable cause to believe that the guardianship should be223
terminated, the court shall dismiss the petition. If the petition is not dismissed, the court224
shall order that an evaluation be conducted, in accordance with the provisions of225
subsection (d) of Code Section 29-4-11. If, after reviewing the evaluation report, the court226 23 LC 48 0875S
H. B. 291 (SUB)
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finds that there is no probable cause to believe that the guardianship should be terminated,
227
the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule228
a hearing, with such notice as the court deems appropriate."229
SECTION 8.230
Said title is further amended in Code Section 29-4-70, relating to right of ward to appeal,231
procedure, and appointment of emergency guardian, by revising subsection (d) as follows:232
"(d) Pending any appeal, the superior court or a probate court that is described in233
paragraph (2) of Code Section 15-9-120 may appoint an emergency guardian with such234
powers and duties as are described in Code Section 29-4-16; provided, however, that an235
emergency guardian may be appointed only upon the filing of an affidavit of a physician236
licensed to practice medicine under Chapter 34 of Title 43,
; a psychologist licensed to237
practice under Chapter 39 of Title 43,; an advanced practice registered nurse, licensed238
practical nurse, or registered professional nurse licensed to practice under Chapter 26 of239
Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical240
social worker, licensed master's social worker, licensed marriage and family therapist, or241
professional counselor licensed under Chapter 10A of Title 43 setting forth the existence242
of the emergency circumstances described in subsection (d) of Code Section 29-4-14 and243
after a hearing at which other evidence may be presented. The appointment of an244
emergency guardian is not appealable."245
SECTION 9.246
Said title is further amended in Code Section 29-5-10, relating to petition for appointment247
of conservator and requirements of petition, by revising paragraph (1) of subsection (c) as248
follows:249
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported250
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,;251 23 LC 48 0875S
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a psychologist licensed to practice under Chapter 39 of Title 43,; an advanced practice252
registered nurse, licensed practical nurse, or registered professional nurse licensed to253
practice under Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of254
Title 43; or a licensed clinical social worker, licensed master's social worker, licensed255
marriage and family therapist, or professional counselor licensed under Chapter 10A of256
Title 43 or, if the proposed ward is a patient in any federal medical facility in which such257
a physician, psychologist, or advanced practice registered nurse, licensed practical nurse,258
registered professional nurse, physician assistant, licensed clinical social worker, licensed259
master's social worker, licensed marriage and family therapist, or professional counselor260
is not available, a physician, psychologist, or advanced practice registered nurse, licensed261
practical nurse, registered professional nurse, physician assistant, licensed clinical social262
worker, licensed master's social worker, licensed marriage and family therapist, or263
professional counselor authorized to practice in that such federal facility."264
SECTION 10.265
Said title is further amended in Code Section 29-5-11, relating to prerequisite finding prior266
to appointment of conservator, notice, evaluation, and written report, by revising267
subsection (d) as follows:268
"(d)(1) If the petition is not dismissed pursuant to subsection (b) of this Code section, the269
court shall appoint an evaluating physician evaluator who shall be a physician licensed270
to practice medicine under Chapter 34 of Title 43,; a psychologist licensed to practice271
under Chapter 39 of Title 43,; an advanced practice registered nurse, licensed practical272
nurse, or registered professional nurse licensed to practice under Chapter 26 of Title 43;273
a physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical social274
worker, licensed master's social worker, licensed marriage and family therapist, or275
professional counselor licensed under Chapter 10A of Title 43 or, if the proposed ward276
is a patient in any federal medical facility in which such a physician, psychologist, or277 23 LC 48 0875S
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advanced practice registered nurse, licensed practical nurse, registered professional nurse,278
physician assistant, licensed clinical social worker, licensed master's social worker,279
licensed marriage and family therapist, or professional counselor is not available, a280
physician, psychologist, or advanced practice registered nurse, licensed practical nurse,281
registered professional nurse, physician assistant, licensed clinical social worker, licensed282
master's social worker, licensed marriage and family therapist, or professional counselor283
authorized to practice in that such federal facility other than the physician, psychologist,284
or advanced practice registered nurse, licensed practical nurse, registered professional285
nurse, physician assistant, licensed clinical social worker, licensed master's social worker,286
licensed marriage and family therapist, or professional counselor worker who completed287
the affidavit attached to the petition pursuant to subsection (c) of Code Section 29-5-10.288
(2) When evaluating the proposed ward, the physician, psychologist, or advanced289
practice registered nurse, licensed practical nurse, registered professional nurse, physician290
assistant, licensed clinical social worker, licensed master's social worker, licensed291
marriage and family therapist, or professional counselor shall explain the purpose of the292
evaluation to the proposed ward. The proposed ward may remain silent. Any statements293
made by the proposed ward during the evaluation shall be privileged and shall be294
inadmissable as evidence in any proceeding other than a proceeding under this chapter.295
The proposed ward's legal counsel shall have the right to be present but shall not296
participate in the evaluation.297
(3) The evaluation shall be conducted with as little interference with the proposed ward's298
activities as possible. The evaluation shall take place at the place and time set in the299
notice to the proposed ward and to his or her legal counsel and the time set shall not be300
sooner than the fifth day after the service of notice on the proposed ward. The court,301
however, shall have the exclusive power to change the place and time of the examination302
at any time upon reasonable notice being given to the proposed ward and to his or her303
legal counsel. If the proposed ward fails to appear, the court may order that the proposed304 23 LC 48 0875S
H. B. 291 (SUB)
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ward be taken directly to and from a medical facility, office of a physician, psychologist,
305
or
advanced practice registered nurse, licensed practical nurse, registered professional306
nurse, physician assistant, licensed clinical social worker, licensed master's social worker,307
licensed marriage and family therapist, or professional counselor for purposes of308
evaluation only. The evaluation shall be conducted during the normal business hours of309
the facility or office, and the proposed ward shall not be detained in the facility or office310
overnight. The evaluation may include, but not be limited to:311
(A) A self-report from the proposed ward, if possible;312
(B) Questions and observations of the proposed ward to assess the functional abilities313
of the proposed ward;314
(C) A review of the records for the proposed ward, including, but not limited to,315
medical records, medication charts, and other available records;316
(D) An assessment of cultural factors and language barriers that may impact the317
proposed ward's abilities and living environment; and318
(E) All other factors the evaluator determines to be appropriate to the evaluation.319
(4) A written report shall be filed with the court no later than seven days after the320
evaluation, and the court shall serve a copy of the report by first-class mail upon the321
proposed ward and the proposed ward's legal counsel and guardian ad litem, if appointed.322
(5) The report shall be signed under oath by the physician, psychologist, or licensed323
clinical social worker evaluator and shall:324
(A) State the circumstances and duration of the evaluation, including a summary of325
questions or tests utilized, and the elements of the evaluation;326
(B) List all persons and other sources of information consulted in evaluating the327
proposed ward;328
(C) Describe the proposed ward's mental and physical state and condition, including329
all observed facts considered by the physician, psychologist, or licensed clinical social330
worker evaluator;331 23 LC 48 0875S
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(D) Describe the overall social condition of the proposed ward, including support, care,
332
education, and well-being; and333
(E) Describe the needs of the proposed ward and their foreseeable duration.334
(6) The proposed ward's legal counsel may file a written response to the evaluation,335
provided the response is filed no later than the date of the commencement of the hearing336
on the petition for conservatorship. The response may include, but is not limited to,337
independent evaluations, affidavits of individuals with personal knowledge of the338
proposed ward, and a statement of applicable law."339
SECTION 11.340
Said title is further amended in Code Section 29-5-14, relating to appointment of emergency341
conservator and requirements of petition, by revising paragraph (1) of subsection (d) as342
follows:343
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported344
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,
;345
a psychologist licensed to practice under Chapter 39 of Title 43,; an advanced practice346
registered nurse, licensed practical nurse, or registered professional nurse licensed to347
practice under Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of348
Title 43; or a licensed clinical social worker, licensed master's social worker, licensed349
marriage and family therapist, or professional counselor licensed under Chapter 10A of350
Title 43 or, if the proposed ward is a patient in any federal medical facility in which such351
a physician, psychologist, or advanced practice registered nurse, licensed practical nurse,352
registered professional nurse, physician assistant, licensed clinical social worker, licensed353
master's social worker, licensed marriage and family therapist, or professional counselor354
is not available, a physician, psychologist, or advanced practice registered nurse, licensed355
practical nurse, registered professional nurse, physician assistant, licensed clinical social356 23 LC 48 0875S
H. B. 291 (SUB)
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worker, licensed master's social worker, licensed marriage and family therapist, or357
professional counselor authorized to practice in that such federal facility."358
SECTION 12.359
Said title is further amended in Code Section 29-5-15, relating to review of petition,360
dismissal, and requirements of court upon finding need for emergency conservator, by361
revising subsection (c) as follows:362
"(c) If the court determines that there is probable cause to believe that the proposed ward363
is in need of an emergency conservator, the court shall:364
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency365
hearing, which counsel may be the same counsel who is appointed to represent the366
proposed ward in the hearing on the petition for guardianship or conservatorship, if any367
such petition has been filed, and shall inform counsel of the appointment;368
(2) Order an emergency hearing to be conducted not sooner than three days nor later than369
five days after the filing of the petition;370
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be371
a physician licensed to practice medicine under Chapter 34 of Title 43,; a psychologist372
licensed to practice under Chapter 39 of Title 43,; an advanced practice registered nurse,373
licensed practical nurse, or registered professional nurse licensed to practice under374
Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a375
licensed clinical social worker, licensed master's social worker, licensed marriage and376
family therapist, or professional counselor licensed under Chapter 10A of Title 43, other377
than the physician, psychologist, or advanced practice registered nurse, licensed practical378
nurse, registered professional nurse, physician assistant, licensed clinical social worker,379
licensed master's social worker, licensed marriage and family therapist, or professional380
counselor who completed the affidavit attached to the petition pursuant to paragraph (1)381
of subsection (d) of Code Section 29-5-10, to. Such evaluation shall be conducted within382 23 LC 48 0875S
H. B. 291 (SUB)
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72 hours of the time such order was issued, and a written report to shall be furnished to383
the court and made available to the parties within 72 hours such time, which evaluation384
and report shall be governed by the provisions of subsection (d) of Code Section385
29-5-14 29-5-11;386
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings387
on the proposed ward, which notice shall:388
(A) Be served personally on the proposed ward by an officer of the court and shall not389
be served by mail;390
(B) Inform the proposed ward that a petition has been filed to have an emergency391
conservator appointed for the proposed ward, that the proposed ward has the right to392
attend any hearing that is held, and that, if an emergency conservator is appointed, the393
proposed ward may lose important rights to control the management of the proposed394
ward's property;395
(C) Inform the proposed ward of the place and time at which the proposed ward shall396
submit to the evaluation provided for by paragraph (3) of this subsection;397
(D) Inform the proposed ward of the appointment of legal counsel; and398
(E) Inform the proposed ward of the date and time of the hearing on the emergency399
conservatorship; and400
(5) Appoint an emergency conservator to serve until the emergency hearing, with or401
without prior notice to the proposed ward, if the threatened risk is so immediate and the402
potential harm so irreparable that any delay is unreasonable and the existence of the403
threatened risk and potential for irreparable harm is certified by the affidavit of a404
physician licensed to practice medicine under Chapter 34 of Title 43,; a psychologist405
licensed to practice under Chapter 39 of Title 43,; an advanced practice registered nurse,406
licensed practical nurse, or registered professional nurse licensed to practice under407
Chapter 26 of Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a408
licensed clinical social worker, licensed master's social worker, licensed marriage and409 23 LC 48 0875S
H. B. 291 (SUB)
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family therapist, or professional counselor licensed under Chapter 10A of Title 43;410
provided, however, that, pending the emergency hearing, the court shall order that no411
withdrawals may be made from any account on the authority of the proposed ward's412
signature without the court's prior approval and that the emergency conservator shall not413
expend any funds of the proposed ward without prior court approval. Appointment of an414
emergency conservator under this paragraph is not a final determination of the proposed415
ward's need for a nonemergency conservator. Any emergency conservator appointed416
under this paragraph shall have only those powers and duties specifically enumerated in417
the letters of emergency conservatorship; such powers and duties shall not exceed those418
absolutely necessary to respond to the immediate threatened risk to the ward; and such419
powers and duties shall be subject to the limitations provided in this paragraph regarding420
the expenditures of funds of the ward."421
SECTION 13.422
Said title is further amended in Code Section 29-5-71, relating to modification of423
conservatorship, contents of petition for modification, and burden of proof, by revising424
subsection (b) as follows:425
"(b) If the petition for modification alleges a significant change in the capacity of the ward,426
it must be supported either by the affidavits of two persons who have knowledge of the427
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine428
under Chapter 34 of Title 43,; a psychologist licensed to practice under Chapter 39 of429
Title 43,; an advanced practice registered nurse, licensed practical nurse, or registered430
professional nurse licensed to practice under Chapter 26 of Title 43; a physician assistant431
licensed under Chapter 34 of Title 43; or a licensed clinical social worker, licensed master's432
social worker, licensed marriage and family therapist, or professional counselor licensed433
under Chapter 10A of Title 43, setting forth the supporting facts and determinations. If,434
after reviewing the petition and the affidavits, the court determines that there is no probable435 23 LC 48 0875S
H. B. 291 (SUB)
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cause to believe that there has been a significant change in the capacity of the ward, the
436
court shall dismiss the petition. If the petition is not dismissed, the court shall order that437
an evaluation be conducted, in accordance with the provisions of subsection (d) of Code438
Section 29-5-11. If, after reviewing the evaluation report, the court finds that there is no439
probable cause to believe that there has been a significant change in the capacity of the440
ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall441
schedule a hearing, with such notice as the court deems appropriate."442
SECTION 14.443
Said title is further amended in Code Section 29-5-72, relating to termination of444
conservatorship, required evidence to support, burden of proof, and death of ward, by445
revising subsection (b) as follows:446
"(b) A petition for termination must be supported either by the affidavits of two persons447
who have knowledge of the ward, one of whom may be the petitioner, or of a physician448
licensed to practice medicine under Chapter 34 of Title 43,
; a psychologist licensed to449
practice under Chapter 39 of Title 43,; an advanced practice registered nurse, licensed450
practical nurse, or registered professional nurse licensed to practice under Chapter 26 of451
Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical452
social worker, licensed master's social worker, licensed marriage and family therapist, or453
professional counselor licensed under Chapter 10A of Title 43, setting forth the supporting454
facts and determinations. If, after reviewing the petition and the affidavits, the court455
determines that there is no probable cause to believe that the conservatorship should be456
terminated, the court shall dismiss the petition. If the petition is not dismissed, the court457
shall order that an evaluation be conducted in accordance with the provisions of458
subsection (d) of Code Section 29-5-11. If, after reviewing the evaluation report, the court459
finds that there is no probable cause to believe that the conservatorship should be460 23 LC 48 0875S
H. B. 291 (SUB)
- 19 -
terminated, the court shall dismiss the petition. If the petition is not dismissed, the court
461
shall schedule a hearing with such notice as the court deems appropriate."462
SECTION 15.463
Said title is further amended in Code Section 29-5-110, relating to proceedings for appeal,464
appointment of guardians ad litem, bond and security prior to removal, liability of surety of465
predecessor conservator, and jurisdiction, by revising subsection (d) as follows:466
"(d) Pending any appeal, the superior court or a probate court that is described in467
paragraph (2) of Code Section 15-9-120 may appoint an emergency conservator with468
powers and duties as are described in Code Section 29-5-16; provided, however, that such469
emergency conservator may be appointed only upon the filing of an affidavit of a physician470
licensed to practice medicine under Chapter 34 of Title 43,
; a psychologist licensed to471
practice under Chapter 39 of Title 43,; an advanced practice registered nurse, licensed472
practical nurse, or registered professional nurse licensed to practice under Chapter 26 of473
Title 43; a physician assistant licensed under Chapter 34 of Title 43; or a licensed clinical474
social worker, licensed master's social worker, licensed marriage and family therapist, or475
professional counselor licensed under Chapter 10A of Title 43 setting forth the existence476
of the emergency circumstances described in subsection (d) of Code Section 29-5-14 and477
after a hearing at which other evidence may be presented. The appointment of an478
emergency conservator is not appealable."479
SECTION 16.480
Said title is further amended by revising Code Section 29-9-16, relating to compensation to481
physicians, psychologists, or licensed clinical social workers, as follows:482
"29-9-16.483
(a) For the evaluation or examination required by subsection (d) of Code Section 29-4-11,484
subsection (c) of Code Section 29-4-15, subsection (b) of Code Section 29-4-42,485 23 LC 48 0875S
H. B. 291 (SUB)
- 20 -
subsection (d) of Code Section 29-5-11, subsection (c) of Code Section 29-5-15, or
486
subsection (b) of Code Section 29-5-71, the evaluating physician, psychologist, or
487
advanced practice registered nurse, licensed practical nurse, registered professional nurse,488
physician assistant, licensed clinical social worker, licensed master's social worker,489
licensed marriage and family therapist, or professional counselor shall receive a reasonable490
fee commensurate with the task performed, plus actual expenses.491
(b) In the event the attendance of the evaluating physician, psychologist, or advanced492
practice registered nurse, licensed practical nurse, registered professional nurse, physician493
assistant, licensed clinical social worker, licensed master's social worker, licensed marriage494
and family therapist, or professional counselor shall be required by the court for a hearing495
under subsection (d) of Code Section 29-4-12, subsection (a) of Code Section 29-4-16,496
subsection (b) of Code Section 29-4-42, subsection (d) of Code Section 29-5-12,497
subsection (a) of Code Section 29-5-16, or subsection (b) of Code Section 29-5-71, other498
than pursuant to a subpoena requested by a party to the proceeding, the evaluating499
physician, psychologist, or advanced practice registered nurse, licensed practical nurse,500
registered professional nurse, physician assistant, licensed clinical social worker, licensed501
master's social worker, licensed marriage and family therapist, or professional counselor502
shall receive a reasonable fee commensurate with the task performed, plus actual expenses.503
(c) All fees and expenses payable under subsection (a) or (b) of this Code section shall be504
assessed by the court and paid in accordance with the provisions of Code Section 29-9-3."505
SECTION 17.506
All laws and parts of laws in conflict with this Act are repealed.507