25 LC 44 3193ERS
The Senate Committee on Judiciary offered the following
substitute to HB 36:
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
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SECTION 2.17
Said title is further amended in Code Section 29-4-1, relating to prerequisite findings prior18
to appointment of guardian for adult and extent of guardianship, by adding a new paragraph19
to subsection (e) to read as follows:20
"(3) An adult shall not be presumed to be in need of a guardian solely because of a21
finding that the adult has one or more developmental disabilities as defined in22
paragraph (8) of Code Section 37-1-1."23
SECTION 3.24
Said title is further amended in Code Section 29-4-10, relating to petition for appointment25
of guardian and requirements for petition, by revising paragraph (1) of subsection (c) as26
follows:27
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported28
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,29
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant30
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in31
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage32
and family therapist or professional counselor licensed under Chapter 10A of Title 43,33
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal34
medical facility in which such a physician, psychologist, or physician assistant, nurse35
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family36
therapist, professional counselor, or licensed clinical social worker is not available, a37
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist38
in psychiatric/mental health, marriage and family therapist, professional counselor, or39
licensed clinical social worker who is authorized to practice in that such federal facility."40
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SECTION 4.41
Said title is further amended in Code Section 29-4-11, relating to prerequisite judicial finding42
of probable cause, notice, petition, evaluations, and reporting requirements for appointment43
for guardians for adults, by revising subsection (d) as follows:44
"(d)(1) If the petition is not dismissed under pursuant to subsection (b) of this Code45
section, the court shall appoint an evaluating physician evaluator who shall be a physician46
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to47
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of48
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health49
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or50
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical51
social worker, or, if the proposed ward is a patient in any federal medical facility in which52
such a physician, psychologist, or physician assistant, nurse practitioner, clinical nurse53
specialist in psychiatric/mental health, marriage and family therapist, professional54
counselor, or licensed clinical social worker is not available, a physician, psychologist,55
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental56
health, marriage and family therapist, professional counselor, or licensed clinical social57
worker who is authorized to practice in that such federal facility, other than the physician,58
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in59
psychiatric/mental health, marriage and family therapist, professional counselor, or60
licensed clinical social worker who completed the affidavit attached to the petition61
pursuant to subsection (c) of Code Section 29-4-10.62
(2) When evaluating the proposed ward, the physician, psychologist, or physician63
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,64
marriage and family therapist, professional counselor, or licensed clinical social worker65
shall explain the purpose of the evaluation to the proposed ward. The proposed ward may66
remain silent. Any statements made by the proposed ward during the evaluation shall be67
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privileged and shall be inadmissable as evidence in any proceeding other than a68
proceeding under this chapter. The proposed ward's legal counsel shall have the right to69
be present but shall not participate in the evaluation.70
(3) The evaluation shall be conducted with as little interference with the proposed ward's71
activities as possible. The evaluation shall take place at the place and time set in the72
notice to the proposed ward and the his or her legal counsel and the time set shall not be73
sooner than the fifth day after the service of notice on the proposed ward. The court,74
however, shall have the exclusive power to change the place and time of the examination75
at any time upon reasonable notice being given to the proposed ward and to his or her76
legal counsel. If the proposed ward fails to appear, the court may order that the proposed77
ward be taken directly to and from a medical facility or the office of the physician,78
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in79
psychiatric/mental health, marriage and family therapist, professional counselor, or80
licensed clinical social worker for purposes of evaluation only. The evaluation shall be81
conducted during the normal business hours of the facility or office and the proposed82
ward shall not be detained in the facility or office overnight. The evaluation may include,83
but not be limited to:84
(A) A self-report from the proposed ward, if possible;85
(B) Questions and observations of the proposed ward to assess the functional abilities86
of the proposed ward;87
(C) A review of the records for the proposed ward, including, but not limited to,88
medical records, medication charts, and other available records;89
(D) An assessment of cultural factors and language barriers that may impact the90
proposed ward's abilities and living environment; and91
(E) All other factors the evaluator determines to be appropriate to the evaluation.92
(4) A written report shall be filed with the court no later than seven days after the93
evaluation, and the court shall serve a copy of the report by first-class mail upon the94
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proposed ward and the proposed ward's legal counsel and, if any, the guardian ad litem95
if appointed.96
(5) The report shall be signed under oath by the physician, psychologist, or licensed97
clinical social worker evaluator and shall:98
(A) State the circumstances and duration of the evaluation, including a summary of99
questions or tests utilized, and the elements of the evaluation;100
(B) List all persons and other sources of information consulted in evaluating the101
proposed ward;102
(C) Describe the proposed ward's mental and physical state and condition, including103
all observed facts considered by the physician or psychologist or licensed clinical social104
worker evaluator;105
(D) Describe the overall social condition of the proposed ward, including support, care,106
education, and well-being; and107
(E) Describe the needs of the proposed ward and their foreseeable duration.108
(6) The proposed ward's legal counsel may file a written response to the evaluation,109
provided the response is filed no later than the date of the commencement of the hearing110
on the petition for guardianship. The response may include, but is not limited to,111
independent evaluations, affidavits of individuals with personal knowledge of the112
proposed ward, and a statement of applicable law. In the response, the proposed ward's113
legal counsel may also challenge the sufficiency and weight of the results and114
conclusions of the evaluation and written report and the qualifications, experience, or115
abilities of the person performing the evaluation."116
SECTION 5.117
Said title is further amended in Code Section 29-4-12, relating to judicial review of pleadings118
and evaluation report, findings, and hearing, by revising subsection (d) as follows:119
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"(d)(1) The hearing shall be held in a courtroom or, for good cause shown, at such other120
place as the court may choose. At the request of the proposed ward or the proposed121
ward's legal counsel and for good cause shown, the court may exercise its discretion to122
exclude the public from the hearing and the record shall reflect the court's action. The123
proposed ward or the proposed ward's legal counsel may waive the appearance of the124
proposed ward at the hearing.125
(2) The hearing shall be recorded by either a certified court reporter or a sound-recording126
device. The recording shall be retained for not less than 45 days from the date of the127
entry of the order described in Code Section 29-4-13.128
(3) The court shall apply the rules of evidence applicable in civil cases.129
(4) At the hearing, the proposed ward may also challenge, by appropriate evidence and130
argument, the sufficiency and weight of the results and conclusions of the evaluation and131
written report and the qualifications, experience, or abilities of the person performing the132
evaluation. The proposed ward shall have the right to present such evidence and133
argument regardless of whether the proposed ward's legal counsel raised such matters in134
a written response submitted by the proposed ward's legal counsel pursuant to135
paragraph (6) of subsection (d) of Code Section 29-4-11.136
(5) The court shall utilize the criteria in Code Section 29-4-1 to determine whether there137
is clear and convincing evidence of the need for a guardianship in light of the evidence138
taken at the hearing. In addition, the court may consider the evaluation report and any139
response filed or argument and evidence presented by the proposed ward. The burden140
of proof shall be upon the petitioner.141
(6) If the court finds that the proposed ward has one or more developmental disabilities142
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is143
a need for a guardianship unless the evidence shows by clear and convincing evidence144
that, due to such developmental disability or disabilities and other factors that may be145
- 6 - 25 LC 44 3193ERS
present, the proposed ward lacks sufficient capacity to make or communicate significant146
responsible decisions concerning his or her health or safety.147
(5)(7) Upon determination of the need for a guardianship, the court shall determine the148
powers, if any, which are to be retained by the proposed ward, in accordance with the149
provisions of Code Section 29-4-21 and whether any additional powers are to be granted150
to the guardian, pursuant to the provisions of subsection (b) of Code Section 29-4-23.151
(6)(8) If the court determines that a guardianship is necessary and the proposed ward is152
present, the proposed ward may suggest any individual as guardian. The court shall153
select as guardian the individual who will serve the best interest of the ward.154
(7)(9) In any procedure under this chapter in which the judge of the court is unable to155
hear a case within the time required for such hearing, the judge shall appoint an156
individual to hear the case and exercise all the jurisdiction of the court in the case. Any157
individual appointed shall be a member of the State Bar of Georgia who is qualified to158
serve as the probate judge in that county and who is, in the opinion of the appointing159
judge, qualified for the duties by training and experience. The appointment may be made160
on a case-by-case basis or by making a standing appointment of one or more individuals. 161
Any individual who receives a standing appointment shall serve at the pleasure of the162
judge who makes the appointment or the judge's successor in office. The compensation163
of an individual appointed shall be as agreed upon by the judge who makes the164
appointment and the individual appointed, with the approval of the governing authority165
of the county for which the individual is appointed, and shall be paid from county funds. 166
All fees collected for the service of the appointed individual shall be paid into the general167
funds of the county."168
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SECTION 6.169
Said title is further amended in Code Section 29-4-14, relating to petition for appointment170
of emergency guardian of an adult and requirements of petition, by revising paragraph (1)171
of subsection (d) as follows:172
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported173
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,174
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant175
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in176
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage177
and family therapist or professional counselor licensed under Chapter 10A of Title 43,178
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal179
medical facility in which such a physician, psychologist, or physician assistant, nurse180
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family181
therapist, professional counselor, or licensed clinical social worker is not available, a182
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist183
in psychiatric/mental health, marriage and family therapist, professional counselor, or184
licensed clinical social worker authorized to practice in that such federal facility."185
SECTION 7.186
Said title is further amended in Code Section 29-4-15, relating to prerequisite findings prior187
to appointment of emergency guardian, evaluation, notice, and hearing, by revising188
subsection (c) as follows:189
"(c) If the court determines that there is probable cause to believe that the proposed ward190
is in need of an emergency guardian, the court shall:191
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency192
hearing, which counsel may be the same counsel who is appointed to represent the193
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proposed ward in the hearing on the petition for guardianship or conservatorship, if any194
such petition has been filed, and shall inform counsel of the appointment;195
(2) Order an emergency hearing to be conducted not sooner than three days nor later than196
five days after the filing of the petition;197
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be198
a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist199
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under200
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in201
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage202
and family therapist or professional counselor licensed under Chapter 10A of Title 43,203
or a licensed clinical social worker, other than the physician, psychologist, or physician204
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,205
marriage and family therapist, professional counselor, or licensed clinical social worker206
who completed the affidavit attached to the petition pursuant to paragraph (1) of207
subsection (d) of Code Section 29-4-10. The evaluation shall be conducted within 72208
hours of the time the order was issued and a written report shall be furnished to the court209
and made available to the parties within this time frame, which evaluation and report210
shall be governed by the provisions of subsection (d) of Code Section 29-4-11;211
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings212
on the proposed ward, which notice shall:213
(A) Be served personally on the proposed ward by an officer of the court and shall not214
be served by mail;215
(B) Inform the proposed ward that a petition has been filed to have an emergency216
guardian appointed for the proposed ward, that the proposed ward has the right to attend217
any hearing that is held, and that, if an emergency guardian is appointed, the proposed218
ward may lose important rights to control the management of the proposed ward's219
person;220
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(C) Inform the proposed ward of the place and time at which the proposed ward shall221
submit to the evaluation provided for by paragraph (3) of this subsection;222
(D) Inform the proposed ward of the appointment of legal counsel; and223
(E) Inform the proposed ward of the date and time of the hearing on the emergency224
guardianship; and225
(5) Appoint an emergency guardian to serve until the emergency hearing, with or without226
prior notice to the proposed ward, if the threatened risk is so immediate and the potential227
harm so irreparable that any delay is unreasonable and the existence of the threatened risk228
and potential for irreparable harm is certified by the affidavit of a physician licensed to229
practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under230
Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43, a231
nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or232
registered under Chapter 26 of Title 43, a marriage and family therapist or professional233
counselor licensed under Chapter 10A of Title 43, or a licensed clinical social worker.234
Appointment of an emergency guardian under this paragraph is not a final determination235
of the proposed ward's need for a nonemergency guardian. Any emergency guardian236
appointed under this paragraph shall have only those powers and duties specifically237
enumerated in the letters of emergency guardianship, and the powers and duties shall not238
exceed those absolutely necessary to respond to the immediate threatened risk to the239
ward."240
SECTION 8.241
Said title is further amended by revising Code Section 29-4-16, relating to conduct of242
emergency guardianship hearing and limitations on emergency guardianship, as follows:243
"29-4-16.244
(a) The court shall conduct the emergency guardianship hearing, at the time and date set245
forth in its order, to determine whether there is clear and convincing evidence of the need246
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for an emergency guardianship in light of the evidence taken at the hearing. In addition to247
the evidence at the hearing, the court may consider the evaluation report and any response248
filed by the proposed ward. The proposed ward may also challenge, by appropriate249
evidence and argument, the sufficiency and weight of the results and conclusions of the250
evaluation and written report and the qualifications, experience, or abilities of the person251
performing the evaluation. The burden of proof shall be upon the petitioner. Upon the252
consent of the petitioner and the proposed ward, the court may grant a continuance of the253
case for a period not to exceed 30 days.254
(b) If the court at the emergency hearing finds that an emergency guardianship is255
necessary, the court shall order the emergency guardianship; provided, however, that:256
(1) Any emergency guardian shall have only those powers and duties specifically257
enumerated in the letters of emergency guardianship and the powers and duties shall not258
exceed those absolutely necessary to respond to the immediate threatened risk to the259
ward;260
(2) The court may order the emergency guardian to make any report the court requires;261
(3) If the court finds that the proposed ward has one or more developmental disabilities262
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is263
a need for an emergency guardianship unless the evidence shows by clear and convincing264
evidence that, due to such developmental disability or disabilities and other factors that265
may be present, the proposed ward lacks sufficient capacity to make or communicate266
significant responsible decisions concerning his or her health or safety and there is an267
immediate and substantial risk of death or serious physical injury, illness, or disease268
unless an emergency guardian is appointed; and269
(3)(4) The emergency guardianship shall terminate on the earliest of:270
(A) The court's removal of the emergency guardian, with or without cause;271
(B) The effective date of the appointment of a guardian;272
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(C) Unless otherwise specified in the order of dismissal, the dismissal of a petition for273
appointment of a guardian;274
(D) The date specified for the termination in the order appointing the emergency275
guardian;276
(E) Sixty days from the date of appointment of the emergency guardian, provided that277
the court had jurisdiction to issue such order under paragraph (1) of Code278
Section 29-11-12; or279
(F) Ninety days from the date of appointment of the emergency guardian, provided that280
the court had jurisdiction to issue such order under paragraph (2) or (3) of Code281
Section 29-11-12."282
SECTION 9.283
Said title is further amended in Code Section 29-4-41, relating to modification of284
guardianship, by revising subsection (b) as follows:285
"(b) If the petition for modification alleges a significant change in the capacity of the ward,286
it must be supported either by the affidavits of two persons who have knowledge of the287
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine288
under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of289
Title 43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner290
or clinical nurse specialist in psychiatric/mental health licensed or registered under291
Chapter 26 of Title 43, a marriage and family therapist or professional counselor licensed292
under Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the293
supporting facts and determinations. If, after reviewing the petition and the affidavits, the294
court determines that there is no probable cause to believe that there has been a significant295
change in the capacity of the ward, the court shall dismiss the petition. If the petition is not296
dismissed, the court shall order that an evaluation be conducted, in accordance with the297
provisions of subsection (d) of Code Section 29-4-11. If, after reviewing the evaluation298
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report, the court finds that there is no probable cause to believe that there has been a299
significant change in the capacity of the ward, the court shall dismiss the petition. If the300
petition is not dismissed, the court shall schedule a hearing, with notice as the court deems301
appropriate."302
SECTION 10.303
Said title is further amended in Code Section 29-4-42, relating to termination of304
guardianship, required evidence, burden of proof, and return of property, by revising305
subsection (b) as follows:306
"(b) A petition for termination must be supported either by the affidavits of two persons307
who have knowledge of the ward, one of whom may be the petitioner, or of a physician308
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to309
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of310
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health311
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or312
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social313
worker, setting forth the supporting facts and determinations. If, after reviewing the314
petition and the affidavits, the court determines that there is no probable cause to believe315
that the guardianship should be terminated, the court shall dismiss the petition. If the316
petition is not dismissed, the court shall order that an evaluation be conducted, in317
accordance with the provisions of subsection (d) of Code Section 29-4-11. If, after318
reviewing the evaluation report, the court finds that there is no probable cause to believe319
that the guardianship should be terminated, the court shall dismiss the petition. If the320
petition is not dismissed, the court shall schedule a hearing, with such notice as the court321
deems appropriate."322
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SECTION 11.323
Said title is further amended in Code Section 29-4-70, relating to right of ward to appeal,324
procedure, and appointment of emergency guardian, by revising subsection (d) as follows:325
"(d) Pending any appeal, the superior court or a probate court that is described in326
paragraph (2) of Code Section 15-9-120 may appoint an emergency guardian with such327
powers and duties as are described in Code Section 29-4-16; provided, however, that an328
emergency guardian may be appointed only upon the filing of an affidavit of a physician329
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to330
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of331
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health332
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or333
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social334
worker, setting forth the existence of the emergency circumstances described in subsection335
(d) of Code Section 29-4-14 and after a hearing at which other evidence may be presented. 336
The appointment of an emergency guardian is not appealable."337
SECTION 12.338
Said title is further amended in Code Section 29-5-1, relating to conservator for adults, best339
interest of the adult, no presumption of need for conservator, and objective of340
conservatorship, by adding a new paragraph to subsection (e) to read as follows:341
"(3) An adult shall not be presumed to be in need of a conservator solely because of a342
finding that the adult has one or more developmental disabilities as defined in paragraph343
(8) of Code Section 37-1-1."344
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SECTION 13.345
Said title is further amended in Code Section 29-5-10, relating to petition for appointment346
of conservator and requirements of petition, by revising paragraph (1) of subsection (c) as347
follows:348
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported349
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,350
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant351
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in352
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage353
and family therapist or professional counselor licensed under Chapter 10A of Title 43,354
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal355
medical facility in which such a physician, psychologist, or physician assistant, nurse356
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family357
therapist, professional counselor, or licensed clinical social worker is not available, a358
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist359
in psychiatric/mental health, marriage and family therapist, professional counselor, or360
licensed clinical social worker authorized to practice in that such federal facility."361
SECTION 14.362
Said title is further amended in Code Section 29-5-11, relating to prerequisite finding prior363
to appointment of conservator, notice, evaluation, and written report, by revising364
subsection (d) as follows:365
"(d)(1) If the petition is not dismissed pursuant to subsection (b) of this Code section, the366
court shall appoint an evaluating physician evaluator who shall be a physician licensed367
to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice368
under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43,369
a nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or370
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registered under Chapter 26 of Title 43, a marriage and family therapist or professional371
counselor licensed under Chapter 10A of Title 43, or a licensed clinical social worker, or,372
if the proposed ward is a patient in any federal medical facility in which such a physician,373
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in374
psychiatric/mental health, marriage and family therapist, professional counselor, or375
licensed clinical social worker is not available, a physician, psychologist, or physician376
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,377
marriage and family therapist, professional counselor, or licensed clinical social worker378
authorized to practice in that such federal facility other than the physician, psychologist,379
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental380
health, marriage and family therapist, professional counselor, or licensed clinical social381
worker who completed the affidavit attached to the petition pursuant to subsection (c) of382
Code Section 29-5-10.383
(2) When evaluating the proposed ward, the physician, psychologist, or physician384
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,385
marriage and family therapist, professional counselor, or licensed clinical social worker386
shall explain the purpose of the evaluation to the proposed ward. The proposed ward may387
remain silent. Any statements made by the proposed ward during the evaluation shall be388
privileged and shall be inadmissable as evidence in any proceeding other than a389
proceeding under this chapter. The proposed ward's legal counsel shall have the right to390
be present but shall not participate in the evaluation.391
(3) The evaluation shall be conducted with as little interference with the proposed ward's392
activities as possible. The evaluation shall take place at the place and time set in the393
notice to the proposed ward and to his or her legal counsel and the time set shall not be394
sooner than the fifth day after the service of notice on the proposed ward. The court,395
however, shall have the exclusive power to change the place and time of the examination396
at any time upon reasonable notice being given to the proposed ward and to his or her397
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legal counsel. If the proposed ward fails to appear, the court may order that the proposed398
ward be taken directly to and from a medical facility, office of a physician, psychologist,399
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental400
health, marriage and family therapist, professional counselor, or licensed clinical social401
worker for purposes of evaluation only. The evaluation shall be conducted during the402
normal business hours of the facility or office, and the proposed ward shall not be403
detained in the facility or office overnight. The evaluation may include, but not be404
limited to:405
(A) A self-report from the proposed ward, if possible;406
(B) Questions and observations of the proposed ward to assess the functional abilities407
of the proposed ward;408
(C) A review of the records for the proposed ward, including, but not limited to,409
medical records, medication charts, and other available records;410
(D) An assessment of cultural factors and language barriers that may impact the411
proposed ward's abilities and living environment; and412
(E) All other factors the evaluator determines to be appropriate to the evaluation.413
(4) A written report shall be filed with the court no later than seven days after the414
evaluation, and the court shall serve a copy of the report by first-class mail upon the415
proposed ward and the proposed ward's legal counsel and guardian ad litem, if appointed.416
(5) The report shall be signed under oath by the physician, psychologist, or licensed417
clinical social worker evaluator and shall:418
(A) State the circumstances and duration of the evaluation, including a summary of419
questions or tests utilized, and the elements of the evaluation;420
(B) List all persons and other sources of information consulted in evaluating the421
proposed ward;422
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(C) Describe the proposed ward's mental and physical state and condition, including423
all observed facts considered by the physician, psychologist, or licensed clinical social424
worker evaluator;425
(D) Describe the overall social condition of the proposed ward, including support, care,426
education, and well-being; and427
(E) Describe the needs of the proposed ward and their foreseeable duration.428
(6) The proposed ward's legal counsel may file a written response to the evaluation,429
provided the response is filed no later than the date of the commencement of the hearing430
on the petition for conservatorship. The response may include, but is not limited to,431
independent evaluations, affidavits of individuals with personal knowledge of the432
proposed ward, and a statement of applicable law. In the response, the proposed ward's433
legal counsel may also challenge the sufficiency and weight of the results and434
conclusions of the evaluation and written report and the qualifications, experience, or435
abilities of the person performing the evaluation."436
SECTION 15.437
Said title is further amended in Code Section 29-5-12, relating to judicial review and438
proceedings, by revising subsection (d) as follows:439
(d)(1) The hearing shall be held in a courtroom or, for good cause shown, at any other440
place as the court may set. At the request of the proposed ward or the proposed ward's441
legal counsel and for good cause shown, the court may exercise its discretion to exclude442
the public from the hearing and the record shall reflect the court's action. The proposed443
ward or the proposed ward's legal counsel may waive the appearance of the proposed444
ward at the hearing.445
(2) The hearing shall be recorded by either a certified court reporter or a sound-recording446
device. The recording shall be retained for not less than 45 days from the date of the447
entry of the order described in Code Section 29-5-138.448
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(3) The court shall apply the rules of evidence applicable in civil cases.449
(4) At the hearing, the proposed ward may also challenge, by appropriate evidence and450
argument, the sufficiency and weight of the results and conclusions of the evaluation and451
written report and the qualifications, experience, or abilities of the person performing the452
evaluation. The proposed ward shall have the right to present such evidence and453
argument regardless of whether the proposed ward's legal counsel raised such matters in454
a written response submitted by the proposed ward's legal counsel pursuant to455
paragraph (6) of subsection (d) of Code Section 29-5-11.456
(5) The court shall utilize the criteria in Code Section 29-5-1 to determine whether there457
is clear and convincing evidence of the need for a conservatorship in light of the evidence458
taken at the hearing. In addition to the evidence at the hearing, the court may consider459
the evaluation report and any response filed by the proposed ward. The burden of proof460
shall be upon the petitioner.461
(6) If the court finds that the proposed ward has one or more developmental disabilities462
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is463
a need for a conservatorship unless the evidence shows by clear and convincing evidence464
that, due to such developmental disability or disabilities and other factors that may be465
present, the proposed ward lacks sufficient capacity to make or communicate significant466
responsible decisions concerning the management of his or her property.467
(5)(7) Upon determination of the need for a conservatorship, the court shall determine468
the powers, if any, which are to be retained by the proposed ward, in accordance with the469
provisions of Code Section 29-5-21 and whether any additional powers shall be granted470
to the conservator pursuant to the provisions of subsections (b) and (c) of Code471
Section 29-5-23.472
(6)(8) If the court determines that a conservatorship is necessary and the proposed ward473
is present, the proposed ward may suggest any person as conservator. The court shall474
select as conservator the person who shall serve the best interest of the ward.475
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(7)(9) In any procedure under this chapter in which the judge of the court is unable to476
hear a case within the time required for a hearing on the petition for conservatorship, the477
judge shall appoint an individual to serve to hear the case and exercise all the jurisdiction478
of the court in the case. Any individual so appointed shall be a member of the State Bar479
of Georgia who is qualified to serve as the probate judge in that county and who is, in the480
opinion of the appointing judge, qualified for the duties by training and experience. The481
appointment may be made on a case-by-case basis or by making a standing appointment482
of one or more individuals. Any individual who receives a standing appointment shall483
serve at the pleasure of the judge who makes the appointment or the judge's successor in484
office. The compensation of an individual so appointed shall be as agreed upon by the485
judge who makes the appointment and the individual appointed, with the approval of the486
governing authority of the county for which the individual is appointed, and shall be paid487
from county funds. All fees collected for the service of the appointed individual shall be488
paid into the general funds of the county."489
SECTION 16.490
Said title is further amended in Code Section 29-5-14, relating to appointment of emergency491
conservator and requirements of petition, by revising paragraph (1) of subsection (d) as492
follows:493
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported494
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,495
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant496
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in497
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage498
and family therapist or professional counselor licensed under Chapter 10A of Title 43,499
or a licensed clinical social worker, or, if the proposed ward is a patient in any federal500
medical facility in which such a physician, psychologist, or physician assistant, nurse501
- 20 - 25 LC 44 3193ERS
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family502
therapist, professional counselor, or licensed clinical social worker is not available, a503
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist504
in psychiatric/mental health, marriage and family therapist, professional counselor, or505
licensed clinical social worker authorized to practice in that such federal facility."506
SECTION 17.507
Said title is further amended in Code Section 29-5-15, relating to review of petition,508
dismissal, and requirements of court upon finding need for emergency conservator, by509
revising subsection (c) as follows:510
"(c) If the court determines that there is probable cause to believe that the proposed ward511
is in need of an emergency conservator, the court shall:512
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency513
hearing, which counsel may be the same counsel who is appointed to represent the514
proposed ward in the hearing on the petition for guardianship or conservatorship, if any515
such petition has been filed, and shall inform counsel of the appointment;516
(2) Order an emergency hearing to be conducted not sooner than three days nor later than517
five days after the filing of the petition;518
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be519
a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist520
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under521
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in522
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage523
and family therapist or professional counselor licensed under Chapter 10A of Title 43,524
or a licensed clinical social worker, other than the physician, psychologist, or physician525
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,526
marriage and family therapist, professional counselor, or licensed clinical social worker527
- 21 - 25 LC 44 3193ERS
who completed the affidavit attached to the petition pursuant to paragraph (1) of528
subsection (d) of Code Section 29-5-10, to. Such evaluation shall be conducted within529
72 hours of the time such order was issued, and a written report to shall be furnished to530
the court and made available to the parties within 72 hours such time, which evaluation531
and report shall be governed by the provisions of subsection (d) of Code532
Section 29-5-14 29-5-11;533
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings534
on the proposed ward, which notice shall:535
(A) Be served personally on the proposed ward by an officer of the court and shall not536
be served by mail;537
(B) Inform the proposed ward that a petition has been filed to have an emergency538
conservator appointed for the proposed ward, that the proposed ward has the right to539
attend any hearing that is held, and that, if an emergency conservator is appointed, the540
proposed ward may lose important rights to control the management of the proposed541
ward's property;542
(C) Inform the proposed ward of the place and time at which the proposed ward shall543
submit to the evaluation provided for by paragraph (3) of this subsection;544
(D) Inform the proposed ward of the appointment of legal counsel; and545
(E) Inform the proposed ward of the date and time of the hearing on the emergency546
conservatorship; and547
(5) Appoint an emergency conservator to serve until the emergency hearing, with or548
without prior notice to the proposed ward, if the threatened risk is so immediate and the549
potential harm so irreparable that any delay is unreasonable and the existence of the550
threatened risk and potential for irreparable harm is certified by the affidavit of a551
physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist552
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under553
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in554
- 22 - 25 LC 44 3193ERS
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a marriage555
and family therapist or professional counselor licensed under Chapter 10A of Title 43,556
or a licensed clinical social worker; provided, however, that, pending the emergency557
hearing, the court shall order that no withdrawals may be made from any account on the558
authority of the proposed ward's signature without the court's prior approval and that the559
emergency conservator shall not expend any funds of the proposed ward without prior560
court approval. Appointment of an emergency conservator under this paragraph is not561
a final determination of the proposed ward's need for a nonemergency conservator. Any562
emergency conservator appointed under this paragraph shall have only those powers and563
duties specifically enumerated in the letters of emergency conservatorship; such powers564
and duties shall not exceed those absolutely necessary to respond to the immediate565
threatened risk to the ward; and such powers and duties shall be subject to the limitations566
provided in this paragraph regarding the expenditures of funds of the ward."567
SECTION 18.568
Said title is further amended by revising Code Section 29-5-16, relating to emergency569
conservatorship hearing and limitations on powers of emergency conservator, as follows:570
"29-5-16.571
(a) The court shall conduct the emergency conservatorship hearing at the time and date set572
forth in its order to determine whether there is clear and convincing evidence of the need573
for an emergency conservatorship in light of the evidence taken at the hearing. In addition574
to the evidence at the hearing, the court may consider the evaluation report and any575
response filed by the proposed ward. The proposed ward may also challenge, by576
appropriate evidence and argument, the sufficiency and weight of the results and577
conclusions of the evaluation and written report and the qualifications, experience, or578
abilities of the person performing the evaluation. The burden of proof shall be upon the579
- 23 - 25 LC 44 3193ERS
petitioner. Upon the consent of the petitioner and the proposed ward, the court may grant580
a continuance of the case for a period not to exceed 30 days.581
(b) If the court at the emergency hearing finds that an emergency conservatorship is582
necessary, the court shall order the emergency conservatorship; provided, however, that:583
(1) Any emergency conservator shall have only those powers and duties specifically584
enumerated in the letters of emergency conservatorship and the powers and duties shall585
not exceed those absolutely necessary to respond to the immediate threatened risk to the586
ward;587
(2) The court may order the emergency conservator to make any report the court588
requires;589
(3) If the court finds that the proposed ward has one or more developmental disabilities590
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is591
a need for an emergency conservatorship unless the evidence shows by clear and592
convincing evidence that, due to such developmental disability or disabilities and other593
factors that may be present, the proposed ward lacks sufficient capacity to make or594
communicate significant responsible decisions concerning the management of his or her595
property and there is an immediate and substantial risk of irreparable waste or dissipation596
of the proposed ward's property unless an emergency conservator is appointed; and597
(3)(4) The emergency conservatorship shall terminate on the earliest of:598
(A) The court's removal of the emergency conservator, with or without cause;599
(B) The effective date of the appointment of a conservator;600
(C) Unless otherwise specified in the order of dismissal, the dismissal of a petition for601
appointment of a conservator;602
(D) The date specified for the termination in the order appointing the emergency603
conservator; or604
(E) Sixty days from the date of appointment of the emergency conservator."605
- 24 - 25 LC 44 3193ERS
SECTION 19.606
Said title is further amended in Code Section 29-5-23, relating to authority of conservator607
and cooperation with guardian or other interested parties, by revising paragraph (13) of608
subsection (a) and paragraph (5) of subsection (c) as follows:609
"(13) Compromise any contested or doubtful claim for or against the ward if the610
proposed gross settlement as defined in Code Section 29-3-3 is in the amount611
of $25,000.00 or less, provided that, for purposes of this paragraph, the term 'gross612
settlement' means the present value of all amounts paid or to be paid in settlement of the613
claim, including cash, medical expenses, expenses of litigation, attorney's fees, and any614
amounts allocated to a structured settlement or other similar financial arrangement; and"615
"(5) To compromise a contested or doubtful claim for or against the ward if the proposed616
gross settlement as defined in Code Section 29-3-3 is more than $25,000.00, provided617
that, for purposes of this paragraph, the term 'gross settlement' means the present value618
of all amounts paid or to be paid in settlement of the claim, including cash, medical619
expenses, expenses of litigation, attorney's fees, and any amounts allocated to a structured620
settlement or other similar financial arrangement;"621
SECTION 20.622
Said title is further amended in Code Section 29-5-71, relating to modification of623
conservatorship, contents of petition for modification, and burden of proof, by revising624
subsection (b) as follows:625
"(b) If the petition for modification alleges a significant change in the capacity of the ward,626
it must be supported either by the affidavits of two persons who have knowledge of the627
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine628
under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title629
43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner or630
clinical nurse specialist in psychiatric/mental health licensed or registered under Chapter 26631
- 25 - 25 LC 44 3193ERS
of Title 43, a marriage and family therapist or professional counselor licensed under632
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the supporting633
facts and determinations. If, after reviewing the petition and the affidavits, the court634
determines that there is no probable cause to believe that there has been a significant635
change in the capacity of the ward, the court shall dismiss the petition. If the petition is not636
dismissed, the court shall order that an evaluation be conducted, in accordance with the637
provisions of subsection (d) of Code Section 29-5-11. If, after reviewing the evaluation638
report, the court finds that there is no probable cause to believe that there has been a639
significant change in the capacity of the ward, the court shall dismiss the petition. If the640
petition is not dismissed, the court shall schedule a hearing, with such notice as the court641
deems appropriate."642
SECTION 21.643
Said title is further amended in Code Section 29-5-72, relating to termination of644
conservatorship, required evidence to support, burden of proof, and death of ward, by645
revising subsection (b) as follows:646
"(b) A petition for termination must be supported either by the affidavits of two persons647
who have knowledge of the ward, one of whom may be the petitioner, or of a physician648
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to649
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of650
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health651
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or652
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social653
worker, setting forth the supporting facts and determinations. If, after reviewing the654
petition and the affidavits, the court determines that there is no probable cause to believe655
that the conservatorship should be terminated, the court shall dismiss the petition. If the656
petition is not dismissed, the court shall order that an evaluation be conducted in657
- 26 - 25 LC 44 3193ERS
accordance with the provisions of subsection (d) of Code Section 29-5-11. If, after658
reviewing the evaluation report, the court finds that there is no probable cause to believe659
that the conservatorship should be terminated, the court shall dismiss the petition. If the660
petition is not dismissed, the court shall schedule a hearing with such notice as the court661
deems appropriate."662
SECTION 22.663
Said title is further amended in Code Section 29-5-110, relating to proceedings for appeal,664
appointment of guardians ad litem, bond and security prior to removal, liability of surety of665
predecessor conservator, and jurisdiction, by revising subsection (d) as follows:666
"(d) Pending any appeal, the superior court or a probate court that is described in667
paragraph (2) of Code Section 15-9-120 may appoint an emergency conservator with668
powers and duties as are described in Code Section 29-5-16; provided, however, that such669
emergency conservator may be appointed only upon the filing of an affidavit of a physician670
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to671
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of672
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health673
licensed or registered under Chapter 26 of Title 43, a marriage and family therapist or674
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical social675
worker, setting forth the existence of the emergency circumstances described in676
subsection (d) of Code Section 29-5-14 and after a hearing at which other evidence may677
be presented. The appointment of an emergency conservator is not appealable."678
SECTION 23.679
Said title is further amended by revising Code Section 29-9-16, relating to compensation to680
physicians, psychologists, or licensed clinical social workers, as follows:681
- 27 - 25 LC 44 3193ERS
"29-9-16.682
(a) For the evaluation or examination required by subsection (d) of Code Section 29-4-11,683
subsection (c) of Code Section 29-4-15, subsection (b) of Code Section 29-4-42,684
subsection (d) of Code Section 29-5-11, subsection (c) of Code Section 29-5-15, or685
subsection (b) of Code Section 29-5-71, the evaluating physician, psychologist, or686
physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,687
marriage and family therapist, professional counselor, or licensed clinical social worker688
shall receive a reasonable fee commensurate with the task performed, plus actual expenses.689
(b) In the event the attendance of the evaluating physician, psychologist, or physician690
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health, marriage691
and family therapist, professional counselor, or licensed clinical social worker shall be692
required by the court for a hearing under subsection (d) of Code Section 29-4-12,693
subsection (a) of Code Section 29-4-16, subsection (b) of Code Section 29-4-42, subsection694
(d) of Code Section 29-5-12, subsection (a) of Code Section 29-5-16, or subsection (b) of695
Code Section 29-5-71, other than pursuant to a subpoena requested by a party to the696
proceeding, the evaluating physician, psychologist, or physician assistant, nurse697
practitioner, clinical nurse specialist in psychiatric/mental health, marriage and family698
therapist, professional counselor, or licensed clinical social worker shall receive a699
reasonable fee commensurate with the task performed, plus actual expenses.700
(c) All fees and expenses payable under subsection (a) or (b) of this Code section shall be701
assessed by the court and paid in accordance with the provisions of Code Section 29-9-3."702
SECTION 24.703
All laws and parts of laws in conflict with this Act are repealed.704
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