24 LC 49 1591S
The Senate Committee on Judiciary offered the following
substitute to HB 375:
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 revise 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 revise 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) of Code Section 29-1-1, relating to definitions, as13
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
- 1 - 24 LC 49 1591S
SECTION 2.17
Said title is further amended in Code Section 29-4-10, relating to petition for appointment18
of guardian and requirements for petition, by revising paragraph (1) of subsection (c) as19
follows:20
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported21
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,22
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant23
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in24
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage25
and family therapist or professional counselor licensed under Chapter 10A of Title 43,26
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal27
medical facility in which such a physician, psychologist, or physician assistant, nurse28
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family29
therapist, professional counselor, or licensed clinical social worker is not available, a30
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist31
in psychiatric/mental health, marriage and family therapist, professional counselor, or32
licensed clinical social worker who is authorized to practice in that such federal facility."33
SECTION 3.34
Said title is further amended in Code Section 29-4-11, relating to prerequisite judicial finding35
of probable cause, notice, petition, evaluations, and reporting requirements for appointment36
for guardians for adults, by revising subsection (d) as follows:37
"(d)(1) If the petition is not dismissed under pursuant to subsection (b) of this Code38
section, the court shall appoint an evaluating physician evaluator who shall be a physician39
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to40
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of41
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health42
- 2 - 24 LC 49 1591S
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or43
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical44
social worker, or, if the proposed ward is a patient in any federal medical facility in which45
such a physician, psychologist, or physician assistant, nurse practitioner, clinical nurse46
specialist in psychiatric/mental health, marriage and family therapist, professional47
counselor, or licensed clinical social worker is not available, a physician, psychologist,48
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental49
health, marriage and family therapist, professional counselor, or licensed clinical social50
worker who is authorized to practice in that such federal facility, other than the physician,51
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in52
psychiatric/mental health, marriage and family therapist, professional counselor, or53
licensed clinical social worker who completed the affidavit attached to the petition54
pursuant to subsection (c) of Code Section 29-4-10.55
(2) When evaluating the proposed ward, the physician, psychologist, or physician56
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,57
marriage and family therapist, professional counselor, or licensed clinical social worker58
shall explain the purpose of the evaluation to the proposed ward. The proposed ward may59
remain silent. Any statements made by the proposed ward during the evaluation shall be60
privileged and shall be inadmissable as evidence in any proceeding other than a61
proceeding under this chapter. The proposed ward's legal counsel shall have the right to62
be present but shall not participate in the evaluation.63
(3) The evaluation shall be conducted with as little interference with the proposed ward's64
activities as possible. The evaluation shall take place at the place and time set in the65
notice to the proposed ward and the his or her legal counsel and the time set shall not be66
sooner than the fifth day after the service of notice on the proposed ward. The court,67
however, shall have the exclusive power to change the place and time of the examination68
at any time upon reasonable notice being given to the proposed ward and to his or her69
- 3 - 24 LC 49 1591S
legal counsel. If the proposed ward fails to appear, the court may order that the proposed70
ward be taken directly to and from a medical facility or the office of the physician,71
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in72
psychiatric/mental health, marriage and family therapist, professional counselor, or73
licensed clinical social worker for purposes of evaluation only. The evaluation shall be74
conducted during the normal business hours of the facility or office and the proposed75
ward shall not be detained in the facility or office overnight. The evaluation may include,76
but not be limited to:77
(A) A self-report from the proposed ward, if possible;78
(B) Questions and observations of the proposed ward to assess the functional abilities79
of the proposed ward;80
(C) A review of the records for the proposed ward, including, but not limited to,81
medical records, medication charts, and other available records;82
(D) An assessment of cultural factors and language barriers that may impact the83
proposed ward's abilities and living environment; and84
(E) All other factors the evaluator determines to be appropriate to the evaluation.85
(4) A written report shall be filed with the court no later than seven days after the86
evaluation, and the court shall serve a copy of the report by first-class mail upon the87
proposed ward and the proposed ward's legal counsel and, if any, the guardian ad litem88
if appointed.89
(5) The report shall be signed under oath by the physician, psychologist, or licensed90
clinical social worker evaluator and shall:91
(A) State the circumstances and duration of the evaluation, including a summary of92
questions or tests utilized, and the elements of the evaluation;93
(B) List all persons and other sources of information consulted in evaluating the94
proposed ward;95
- 4 - 24 LC 49 1591S
(C) Describe the proposed ward's mental and physical state and condition, including96
all observed facts considered by the physician or psychologist or licensed clinical social97
worker evaluator;98
(D) Describe the overall social condition of the proposed ward, including support, care,99
education, and well-being; and100
(E) Describe the needs of the proposed ward and their foreseeable duration.101
(6) The proposed ward's legal counsel may file a written response to the evaluation,102
provided the response is filed no later than the date of the commencement of the hearing103
on the petition for guardianship. The response may include, but is not limited to,104
independent evaluations, affidavits of individuals with personal knowledge of the105
proposed ward, and a statement of applicable law."106
SECTION 4.107
Said title is further amended in Code Section 29-4-14, relating to petition for appointment108
of emergency guardian of an adult and requirements of petition, by revising paragraph (1)109
of subsection (d) as follows:110
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported111
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,112
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant113
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in114
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage115
and family therapist or professional counselor licensed under Chapter 10A of Title 43,116
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal117
medical facility in which such a physician, psychologist, or physician assistant, nurse118
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family119
therapist, professional counselor, or licensed clinical social worker is not available, a120
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist121
- 5 - 24 LC 49 1591S
in psychiatric/mental health, marriage and family therapist, professional counselor, or122
licensed clinical social worker authorized to practice in that such federal facility."123
SECTION 5.124
Said title is further amended in Code Section 29-4-15, relating to prerequisite findings prior125
to appointment of emergency guardian, evaluation, notice, and hearing, by revising126
subsection (c) as follows:127
"(c) If the court determines that there is probable cause to believe that the proposed ward128
is in need of an emergency guardian, the court shall:129
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency130
hearing, which counsel may be the same counsel who is appointed to represent the131
proposed ward in the hearing on the petition for guardianship or conservatorship, if any132
such petition has been filed, and shall inform counsel of the appointment;133
(2) Order an emergency hearing to be conducted not sooner than three days nor later than134
five days after the filing of the petition;135
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be136
a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist137
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under138
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in139
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage140
and family therapist or professional counselor licensed under Chapter 10A of Title 43,141
or a licensed clinical social worker, other than the physician, psychologist, or physician142
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,143
marriage and family therapist, professional counselor, or licensed clinical social worker144
who completed the affidavit attached to the petition pursuant to paragraph (1) of145
subsection (d) of Code Section 29-4-10. The evaluation shall be conducted within 72146
hours of the time the order was issued and a written report shall be furnished to the court147
- 6 - 24 LC 49 1591S
and made available to the parties within this time frame, which evaluation and report148
shall be governed by the provisions of subsection (d) of Code Section 29-4-11;149
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings150
on the proposed ward, which notice shall:151
(A) Be served personally on the proposed ward by an officer of the court and shall not152
be served by mail;153
(B) Inform the proposed ward that a petition has been filed to have an emergency154
guardian appointed for the proposed ward, that the proposed ward has the right to attend155
any hearing that is held, and that, if an emergency guardian is appointed, the proposed156
ward may lose important rights to control the management of the proposed ward's157
person;158
(C) Inform the proposed ward of the place and time at which the proposed ward shall159
submit to the evaluation provided for by paragraph (3) of this subsection;160
(D) Inform the proposed ward of the appointment of legal counsel; and161
(E) Inform the proposed ward of the date and time of the hearing on the emergency162
guardianship; and163
(5) Appoint an emergency guardian to serve until the emergency hearing, with or without164
prior notice to the proposed ward, if the threatened risk is so immediate and the potential165
harm so irreparable that any delay is unreasonable and the existence of the threatened risk166
and potential for irreparable harm is certified by the affidavit of a physician licensed to167
practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under168
Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43, a169
nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or170
registered under Chapter 26 of Title 43, a marriage and family therapist or professional171
counselor licensed under Chapter 10A of Title 43, or a licensed clinical social worker.172
Appointment of an emergency guardian under this paragraph is not a final determination173
of the proposed ward's need for a nonemergency guardian. Any emergency guardian174
- 7 - 24 LC 49 1591S
appointed under this paragraph shall have only those powers and duties specifically175
enumerated in the letters of emergency guardianship, and the powers and duties shall not176
exceed those absolutely necessary to respond to the immediate threatened risk to the177
ward."178
SECTION 6.179
Said title is further amended in Code Section 29-4-41, relating to modification of180
guardianship, by revising subsection (b) as follows:181
"(b) If the petition for modification alleges a significant change in the capacity of the ward,182
it must be supported either by the affidavits of two persons who have knowledge of the183
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine184
under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title185
43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner or186
clinical nurse specialist in psychiatric/mental health licensed or registered under Chapter187
26 of Title 43, a marriage and family therapist or professional counselor licensed under188
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the supporting189
facts and determinations. If, after reviewing the petition and the affidavits, the court190
determines that there is no probable cause to believe that there has been a significant191
change in the capacity of the ward, the court shall dismiss the petition. If the petition is not192
dismissed, the court shall order that an evaluation be conducted, in accordance with the193
provisions of subsection (d) of Code Section 29-4-11. If, after reviewing the evaluation194
report, the court finds that there is no probable cause to believe that there has been a195
significant change in the capacity of the ward, the court shall dismiss the petition. If the196
petition is not dismissed, the court shall schedule a hearing, with notice as the court deems197
appropriate."198
- 8 - 24 LC 49 1591S
SECTION 7.199
Said title is further amended in Code Section 29-4-42, relating to termination of200
guardianship, required evidence, burden of proof, and return of property, by revising201
subsection (b) as follows:202
"(b) A petition for termination must be supported either by the affidavits of two persons203
who have knowledge of the ward, one of whom may be the petitioner, or of a physician204
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to205
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of206
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health207
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or208
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social209
worker, setting forth the supporting facts and determinations. If, after reviewing the210
petition and the affidavits, the court determines that there is no probable cause to believe211
that the guardianship should be terminated, the court shall dismiss the petition. If the212
petition is not dismissed, the court shall order that an evaluation be conducted, in213
accordance with the provisions of subsection (d) of Code Section 29-4-11. If, after214
reviewing the evaluation report, the court finds that there is no probable cause to believe215
that the guardianship should be terminated, the court shall dismiss the petition. If the216
petition is not dismissed, the court shall schedule a hearing, with such notice as the court217
deems appropriate."218
SECTION 8.219
Said title is further amended in Code Section 29-4-70, relating to right of ward to appeal,220
procedure, and appointment of emergency guardian, by revising subsection (d) as follows:221
"(d) Pending any appeal, the superior court or a probate court that is described in222
paragraph (2) of Code Section 15-9-120 may appoint an emergency guardian with such223
powers and duties as are described in Code Section 29-4-16; provided, however, that an224
- 9 - 24 LC 49 1591S
emergency guardian may be appointed only upon the filing of an affidavit of a physician225
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to226
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of227
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health228
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or229
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social230
worker, setting forth the existence of the emergency circumstances described in subsection231
(d) of Code Section 29-4-14 and after a hearing at which other evidence may be presented. 232
The appointment of an emergency guardian is not appealable."233
SECTION 9.234
Said title is further amended in Code Section 29-5-10, relating to petition for appointment235
of conservator and requirements of petition, by revising paragraph (1) of subsection (c) as236
follows:237
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported238
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,239
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant240
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in241
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage242
and family therapist or professional counselor licensed under Chapter 10A of Title 43,243
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal244
medical facility in which such a physician, psychologist, or physician assistant, nurse245
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family246
therapist, professional counselor, or licensed clinical social worker is not available, a247
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist248
in psychiatric/mental health, marriage and family therapist, professional counselor, or249
licensed clinical social worker authorized to practice in that such federal facility."250
- 10 - 24 LC 49 1591S
SECTION 10.251
Said title is further amended in Code Section 29-5-11, relating to prerequisite finding prior252
to appointment of conservator, notice, evaluation, and written report, by revising253
subsection (d) as follows:254
"(d)(1) If the petition is not dismissed pursuant to subsection (b) of this Code section, the255
court shall appoint an evaluating physician evaluator who shall be a physician licensed256
to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice257
under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43,258
a nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or259
registered under Chapter 26 of Title 43, a marriage and family therapist or professional260
counselor licensed under Chapter 10A of Title 43, or a licensed clinical social worker, or,261
if the proposed ward is a patient in any federal medical facility in which such a physician,262
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in263
psychiatric/mental health, marriage and family therapist, professional counselor, or264
licensed clinical social worker is not available, a physician, psychologist, or physician265
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,266
marriage and family therapist, professional counselor, or licensed clinical social worker267
authorized to practice in that such federal facility other than the physician, psychologist,268
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental269
health, marriage and family therapist, professional counselor, or licensed clinical social270
worker who completed the affidavit attached to the petition pursuant to subsection (c) of271
Code Section 29-5-10.272
(2) When evaluating the proposed ward, the physician, psychologist, or physician273
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,274
marriage and family therapist, professional counselor, or licensed clinical social worker275
shall explain the purpose of the evaluation to the proposed ward. The proposed ward may276
remain silent. Any statements made by the proposed ward during the evaluation shall be277
- 11 - 24 LC 49 1591S
privileged and shall be inadmissable as evidence in any proceeding other than a278
proceeding under this chapter. The proposed ward's legal counsel shall have the right to279
be present but shall not participate in the evaluation.280
(3) The evaluation shall be conducted with as little interference with the proposed ward's281
activities as possible. The evaluation shall take place at the place and time set in the282
notice to the proposed ward and to his or her legal counsel and the time set shall not be283
sooner than the fifth day after the service of notice on the proposed ward. The court,284
however, shall have the exclusive power to change the place and time of the examination285
at any time upon reasonable notice being given to the proposed ward and to his or her286
legal counsel. If the proposed ward fails to appear, the court may order that the proposed287
ward be taken directly to and from a medical facility, office of a physician, psychologist,288
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental289
health, marriage and family therapist, professional counselor, or licensed clinical social290
worker for purposes of evaluation only. The evaluation shall be conducted during the291
normal business hours of the facility or office, and the proposed ward shall not be292
detained in the facility or office overnight. The evaluation may include, but not be293
limited to:294
(A) A self-report from the proposed ward, if possible;295
(B) Questions and observations of the proposed ward to assess the functional abilities296
of the proposed ward;297
(C) A review of the records for the proposed ward, including, but not limited to,298
medical records, medication charts, and other available records;299
(D) An assessment of cultural factors and language barriers that may impact the300
proposed ward's abilities and living environment; and301
(E) All other factors the evaluator determines to be appropriate to the evaluation.302
- 12 - 24 LC 49 1591S
(4) A written report shall be filed with the court no later than seven days after the303
evaluation, and the court shall serve a copy of the report by first-class mail upon the304
proposed ward and the proposed ward's legal counsel and guardian ad litem, if appointed.305
(5) The report shall be signed under oath by the physician, psychologist, or licensed306
clinical social worker evaluator and shall:307
(A) State the circumstances and duration of the evaluation, including a summary of308
questions or tests utilized, and the elements of the evaluation;309
(B) List all persons and other sources of information consulted in evaluating the310
proposed ward;311
(C) Describe the proposed ward's mental and physical state and condition, including312
all observed facts considered by the physician, psychologist, or licensed clinical social313
worker evaluator;314
(D) Describe the overall social condition of the proposed ward, including support, care,315
education, and well-being; and316
(E) Describe the needs of the proposed ward and their foreseeable duration.317
(6) The proposed ward's legal counsel may file a written response to the evaluation,318
provided the response is filed no later than the date of the commencement of the hearing319
on the petition for conservatorship. The response may include, but is not limited to,320
independent evaluations, affidavits of individuals with personal knowledge of the321
proposed ward, and a statement of applicable law."322
SECTION 11.323
Said title is further amended in Code Section 29-5-14, relating to appointment of emergency324
conservator and requirements of petition, by revising paragraph (1) of subsection (d) as325
follows:326
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported327
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,328
- 13 - 24 LC 49 1591S
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant329
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in330
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage331
and family therapist or professional counselor licensed under Chapter 10A of Title 43,332
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal333
medical facility in which such a physician, psychologist, or physician assistant, nurse334
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family335
therapist, professional counselor, or licensed clinical social worker is not available, a336
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist337
in psychiatric/mental health, marriage and family therapist, professional counselor, or338
licensed clinical social worker authorized to practice in that such federal facility."339
SECTION 12.340
Said title is further amended in Code Section 29-5-15, relating to review of petition,341
dismissal, and requirements of court upon finding need for emergency conservator, by342
revising subsection (c) as follows:343
"(c) If the court determines that there is probable cause to believe that the proposed ward344
is in need of an emergency conservator, the court shall:345
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency346
hearing, which counsel may be the same counsel who is appointed to represent the347
proposed ward in the hearing on the petition for guardianship or conservatorship, if any348
such petition has been filed, and shall inform counsel of the appointment;349
(2) Order an emergency hearing to be conducted not sooner than three days nor later than350
five days after the filing of the petition;351
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be352
a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist353
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under354
- 14 - 24 LC 49 1591S
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in355
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage356
and family therapist or professional counselor licensed under Chapter 10A of Title 43,357
or a licensed clinical social worker, other than the physician, psychologist, or physician358
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,359
marriage and family therapist, professional counselor, or licensed clinical social worker360
who completed the affidavit attached to the petition pursuant to paragraph (1) of361
subsection (d) of Code Section 29-5-10, to. Such evaluation shall be conducted within362
72 hours of the time such order was issued, and a written report to shall be furnished to363
the court and made available to the parties within 72 hours such time, which evaluation364
and report shall be governed by the provisions of subsection (d) of Code Section365
29-5-14 29-5-11;366
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings367
on the proposed ward, which notice shall:368
(A) Be served personally on the proposed ward by an officer of the court and shall not369
be served by mail;370
(B) Inform the proposed ward that a petition has been filed to have an emergency371
conservator appointed for the proposed ward, that the proposed ward has the right to372
attend any hearing that is held, and that, if an emergency conservator is appointed, the373
proposed ward may lose important rights to control the management of the proposed374
ward's property;375
(C) Inform the proposed ward of the place and time at which the proposed ward shall376
submit to the evaluation provided for by paragraph (3) of this subsection;377
(D) Inform the proposed ward of the appointment of legal counsel; and378
(E) Inform the proposed ward of the date and time of the hearing on the emergency379
conservatorship; and380
- 15 - 24 LC 49 1591S
(5) Appoint an emergency conservator to serve until the emergency hearing, with or381
without prior notice to the proposed ward, if the threatened risk is so immediate and the382
potential harm so irreparable that any delay is unreasonable and the existence of the383
threatened risk and potential for irreparable harm is certified by the affidavit of a384
physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist385
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under386
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in387
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage388
and family therapist or professional counselor licensed under Chapter 10A of Title 43,389
or a licensed clinical social worker; provided, however, that, pending the emergency390
hearing, the court shall order that no withdrawals may be made from any account on the391
authority of the proposed ward's signature without the court's prior approval and that the392
emergency conservator shall not expend any funds of the proposed ward without prior393
court approval. Appointment of an emergency conservator under this paragraph is not394
a final determination of the proposed ward's need for a nonemergency conservator. Any395
emergency conservator appointed under this paragraph shall have only those powers and396
duties specifically enumerated in the letters of emergency conservatorship; such powers397
and duties shall not exceed those absolutely necessary to respond to the immediate398
threatened risk to the ward; and such powers and duties shall be subject to the limitations399
provided in this paragraph regarding the expenditures of funds of the ward."400
SECTION 13.401
Said title is further amended in Code Section 29-5-23, relating to authority of conservator402
and cooperation with guardian or other interested parties, by revising paragraph (13) of403
subsection (a) and paragraph (5) of subsection (c) as follows:404
"(13) Compromise any contested or doubtful claim for or against the ward if the405
proposed gross settlement as defined in Code Section 29-3-3 is in the amount406
- 16 - 24 LC 49 1591S
of $25,000.00 or less, provided that, for purposes of this paragraph, the term 'gross407
settlement' means the present value of all amounts paid or to be paid in settlement of the408
claim, including cash, medical expenses, expenses of litigation, attorney's fees, and any409
amounts allocated to a structured settlement or other similar financial arrangement; and"410
"(5) To compromise a contested or doubtful claim for or against the ward if the proposed411
gross settlement as defined in Code Section 29-3-3 is more than $25,000.00, provided412
that, for purposes of this paragraph, the term 'gross settlement' means the present value413
of all amounts paid or to be paid in settlement of the claim, including cash, medical414
expenses, expenses of litigation, attorney's fees, and any amounts allocated to a structured415
settlement or other similar financial arrangement;"416
SECTION 14.417
Said title is further amended in Code Section 29-5-71, relating to modification of418
conservatorship, contents of petition for modification, and burden of proof, by revising419
subsection (b) as follows:420
"(b) If the petition for modification alleges a significant change in the capacity of the ward,421
it must be supported either by the affidavits of two persons who have knowledge of the422
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine423
under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title424
43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner or425
clinical nurse specialist in psychiatric/mental health licensed or registered under Chapter426
26 of Title 43, a marriage and family therapist or professional counselor licensed under427
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the supporting428
facts and determinations. If, after reviewing the petition and the affidavits, the court429
determines that there is no probable cause to believe that there has been a significant430
change in the capacity of the ward, the court shall dismiss the petition. If the petition is not431
dismissed, the court shall order that an evaluation be conducted, in accordance with the432
- 17 - 24 LC 49 1591S
provisions of subsection (d) of Code Section 29-5-11. If, after reviewing the evaluation433
report, the court finds that there is no probable cause to believe that there has been a434
significant change in the capacity of the ward, the court shall dismiss the petition. If the435
petition is not dismissed, the court shall schedule a hearing, with such notice as the court436
deems appropriate."437
SECTION 15.438
Said title is further amended in Code Section 29-5-72, relating to termination of439
conservatorship, required evidence to support, burden of proof, and death of ward, by440
revising subsection (b) as follows:441
"(b) A petition for termination must be supported either by the affidavits of two persons442
who have knowledge of the ward, one of whom may be the petitioner, or of a physician443
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to444
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of445
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health446
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or447
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social448
worker, setting forth the supporting facts and determinations. If, after reviewing the449
petition and the affidavits, the court determines that there is no probable cause to believe450
that the conservatorship should be terminated, the court shall dismiss the petition. If the451
petition is not dismissed, the court shall order that an evaluation be conducted in452
accordance with the provisions of subsection (d) of Code Section 29-5-11. If, after453
reviewing the evaluation report, the court finds that there is no probable cause to believe454
that the conservatorship should be terminated, the court shall dismiss the petition. If the455
petition is not dismissed, the court shall schedule a hearing with such notice as the court456
deems appropriate."457
- 18 - 24 LC 49 1591S
SECTION 16.458
Said title is further amended in Code Section 29-5-110, relating to proceedings for appeal,459
appointment of guardians ad litem, bond and security prior to removal, liability of surety of460
predecessor conservator, and jurisdiction, by revising subsection (d) as follows:461
"(d) Pending any appeal, the superior court or a probate court that is described in462
paragraph (2) of Code Section 15-9-120 may appoint an emergency conservator with463
powers and duties as are described in Code Section 29-5-16; provided, however, that such464
emergency conservator may be appointed only upon the filing of an affidavit of a physician465
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to466
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of467
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health468
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or469
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social470
worker, setting forth the existence of the emergency circumstances described in subsection471
(d) of Code Section 29-5-14 and after a hearing at which other evidence may be presented. 472
The appointment of an emergency conservator is not appealable."473
SECTION 17.474
Said title is further amended by revising Code Section 29-9-16, relating to compensation to475
physicians, psychologists, or licensed clinical social workers, as follows:476
"29-9-16.477
(a) For the evaluation or examination required by subsection (d) of Code Section 29-4-11,478
subsection (c) of Code Section 29-4-15, subsection (b) of Code Section 29-4-42,479
subsection (d) of Code Section 29-5-11, subsection (c) of Code Section 29-5-15, or480
subsection (b) of Code Section 29-5-71, the evaluating physician, psychologist, or481
physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,482
- 19 - 24 LC 49 1591S
marriage and family therapist, professional counselor, or licensed clinical social worker483
shall receive a reasonable fee commensurate with the task performed, plus actual expenses.484
(b) In the event the attendance of the evaluating physician, psychologist, or physician485
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, marriage486
and family therapist, professional counselor, or licensed clinical social worker shall be487
required by the court for a hearing under subsection (d) of Code Section 29-4-12,488
subsection (a) of Code Section 29-4-16, subsection (b) of Code Section 29-4-42, subsection489
(d) of Code Section 29-5-12, subsection (a) of Code Section 29-5-16, or subsection (b) of490
Code Section 29-5-71, other than pursuant to a subpoena requested by a party to the491
proceeding, the evaluating physician, psychologist, or physician assistant, nurse492
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family493
therapist, professional counselor, or licensed clinical social worker shall receive a494
reasonable fee commensurate with the task performed, plus actual expenses.495
(c) All fees and expenses payable under subsection (a) or (b) of this Code section shall be496
assessed by the court and paid in accordance with the provisions of Code Section 29-9-3."497
SECTION 18.498
All laws and parts of laws in conflict with this Act are repealed.499
- 20 -