25 HB 36/AP
House Bill 36 (AS PASSED HOUSE AND SENATE)
By: Representatives Leverett of the 123
rd
, Scoggins of the 14
th
, Kelley of the 16
th
, Oliver of
the 84
th
, Powell of the 33
rd
, and others
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 a
21
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, a32
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical33
social worker, or, if the proposed ward is a patient in any federal medical facility in which34
such a physician, psychologist, or physician assistant, nurse practitioner, clinical nurse35
specialist in psychiatric/mental health, professional counselor, or licensed clinical social36
worker is not available, a physician, psychologist, or physician assistant, nurse37
practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor,38
or licensed clinical social worker who is authorized to practice in that such federal39
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 professional counselor licensed50
under Chapter 10A of Title 43, or a licensed clinical social worker, or, if the proposed51
ward is a patient in any federal medical facility in which such a physician, psychologist,52
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental53
health, professional counselor, or licensed clinical social worker is not available, a54
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist55
in psychiatric/mental health, professional counselor, or licensed clinical social worker56
who is authorized to practice in that such federal facility, other than the physician,57
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in58
psychiatric/mental health, professional counselor, or licensed clinical social worker who59
completed the affidavit attached to the petition pursuant to subsection (c) of Code Section60
29-4-10.61
(2) When evaluating the proposed ward, the physician, psychologist, or physician62
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,63
professional counselor, or licensed clinical social worker shall explain the purpose of the64
evaluation to the proposed ward. The proposed ward may remain silent. Any statements65
made by the proposed ward during the evaluation shall be privileged and shall be66
inadmissable as evidence in any proceeding other than a proceeding under this chapter. 67
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The proposed ward's legal counsel shall have the right to be present but shall not
68
participate in the evaluation.69
(3) The evaluation shall be conducted with as little interference with the proposed ward's70
activities as possible. The evaluation shall take place at the place and time set in the71
notice to the proposed ward and the
his or her legal counsel and the time set shall not be72
sooner than the fifth day after the service of notice on the proposed ward. The court,73
however, shall have the exclusive power to change the place and time of the examination74
at any time upon reasonable notice being given to the proposed ward and to his or her75
legal counsel. If the proposed ward fails to appear, the court may order that the proposed76
ward be taken directly to and from a medical facility or the office of the physician,77
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in78
psychiatric/mental health, professional counselor, or licensed clinical social worker for79
purposes of evaluation only. The evaluation shall be conducted during the normal80
business hours of the facility or office and the proposed ward shall not be detained in the81
facility or office overnight. The evaluation may include, but not be limited to:82
(A) A self-report from the proposed ward, if possible;83
(B) Questions and observations of the proposed ward to assess the functional abilities84
of the proposed ward;85
(C) A review of the records for the proposed ward, including, but not limited to,86
medical records, medication charts, and other available records;87
(D) An assessment of cultural factors and language barriers that may impact the88
proposed ward's abilities and living environment; and89
(E) All other factors the evaluator determines to be appropriate to the evaluation.90
(4) A written report shall be filed with the court no later than seven days after the91
evaluation, and the court shall serve a copy of the report by first-class mail upon the92
proposed ward and the proposed ward's legal counsel and, if any, the guardian ad litem93
if appointed.94
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(5) The report shall be signed under oath by the physician, psychologist, or licensed95
clinical social worker evaluator and shall:96
(A) State the circumstances and duration of the evaluation, including a summary of97
questions or tests utilized, and the elements of the evaluation;98
(B) List all persons and other sources of information consulted in evaluating the99
proposed ward;100
(C) Describe the proposed ward's mental and physical state and condition, including101
all observed facts considered by the physician or psychologist or licensed clinical social102
worker evaluator;103
(D) Describe the overall social condition of the proposed ward, including support, care,104
education, and well-being; and105
(E) Describe the needs of the proposed ward and their foreseeable duration.106
(6) The proposed ward's legal counsel may file a written response to the evaluation,107
provided the response is filed no later than the date of the commencement of the hearing108
on the petition for guardianship. The response may include, but is not limited to,109
independent evaluations, affidavits of individuals with personal knowledge of the110
proposed ward, and a statement of applicable law. In the response, the proposed ward's111
legal counsel may also challenge the sufficiency and weight of the results and112
conclusions of the evaluation and written report and the qualifications, experience, or113
abilities of the person performing the evaluation."114
SECTION 5.115
Said title is further amended in Code Section 29-4-12, relating to judicial review of pleadings116
and evaluation report, findings, and hearing, by revising subsection (d) as follows:117
"(d)(1) The hearing shall be held in a courtroom or, for good cause shown, at such other118
place as the court may choose. At the request of the proposed ward or the proposed119
ward's legal counsel and for good cause shown, the court may exercise its discretion to120
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exclude the public from the hearing and the record shall reflect the court's action. The
121
proposed ward or the proposed ward's legal counsel may waive the appearance of the122
proposed ward at the hearing.123
(2) The hearing shall be recorded by either a certified court reporter or a sound-recording124
device. The recording shall be retained for not less than 45 days from the date of the125
entry of the order described in Code Section 29-4-13.126
(3) The court shall apply the rules of evidence applicable in civil cases.127
(4) At the hearing, the proposed ward may also challenge, by appropriate evidence and
128
argument, the sufficiency and weight of the results and conclusions of the evaluation and129
written report and the qualifications, experience, or abilities of the person performing the130
evaluation. The proposed ward shall have the right to present such evidence and131
argument regardless of whether the proposed ward's legal counsel raised such matters in132
a written response submitted by the proposed ward's legal counsel pursuant to133
paragraph (6) of subsection (d) of Code Section 29-4-11.134
(5) The court shall utilize the criteria in Code Section 29-4-1 to determine whether there135
is clear and convincing evidence of the need for a guardianship in light of the evidence136
taken at the hearing. In addition, the court may consider the evaluation report and any137
response filed or argument and evidence presented by the proposed ward. The burden138
of proof shall be upon the petitioner.139
(6) If the court finds that the proposed ward has one or more developmental disabilities140
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is141
a need for a guardianship unless the evidence shows by clear and convincing evidence142
that, due to such developmental disability or disabilities and other factors that may be143
present, the proposed ward lacks sufficient capacity to make or communicate significant144
responsible decisions concerning his or her health or safety.145
(5)(7) Upon determination of the need for a guardianship, the court shall determine the146
powers, if any, which are to be retained by the proposed ward, in accordance with the147
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provisions of Code Section 29-4-21 and whether any additional powers are to be granted
148
to the guardian, pursuant to the provisions of subsection (b) of Code Section 29-4-23.149
(6)
(8) If the court determines that a guardianship is necessary and the proposed ward is150
present, the proposed ward may suggest any individual as guardian. The court shall151
select as guardian the individual who will serve the best interest of the ward.152
(7)(9) In any procedure under this chapter in which the judge of the court is unable to153
hear a case within the time required for such hearing, the judge shall appoint an154
individual to hear the case and exercise all the jurisdiction of the court in the case. Any155
individual appointed shall be a member of the State Bar of Georgia who is qualified to156
serve as the probate judge in that county and who is, in the opinion of the appointing157
judge, qualified for the duties by training and experience. The appointment may be made158
on a case-by-case basis or by making a standing appointment of one or more individuals. 159
Any individual who receives a standing appointment shall serve at the pleasure of the160
judge who makes the appointment or the judge's successor in office. The compensation161
of an individual appointed shall be as agreed upon by the judge who makes the162
appointment and the individual appointed, with the approval of the governing authority163
of the county for which the individual is appointed, and shall be paid from county funds. 164
All fees collected for the service of the appointed individual shall be paid into the general165
funds of the county."166
SECTION 6.167
Said title is further amended in Code Section 29-4-14, relating to petition for appointment168
of emergency guardian of an adult and requirements of petition, by revising paragraph (1)169
of subsection (d) as follows:170
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported171
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,172
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant173
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licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in174
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a175
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical176
social worker, or, if the proposed ward is a patient in any federal medical facility in which177
such a physician, psychologist, or physician assistant, nurse practitioner, clinical nurse178
specialist in psychiatric/mental health, professional counselor, or licensed clinical social179
worker is not available, a physician, psychologist, or physician assistant, nurse180
practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor,181
or licensed clinical social worker authorized to practice in that such federal facility."182
SECTION 7.183
Said title is further amended in Code Section 29-4-15, relating to prerequisite findings prior184
to appointment of emergency guardian, evaluation, notice, and hearing, by revising185
subsection (c) as follows:186
"(c) If the court determines that there is probable cause to believe that the proposed ward187
is in need of an emergency guardian, the court shall:188
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency189
hearing, which counsel may be the same counsel who is appointed to represent the190
proposed ward in the hearing on the petition for guardianship or conservatorship, if any191
such petition has been filed, and shall inform counsel of the appointment;192
(2) Order an emergency hearing to be conducted not sooner than three days nor later than193
five days after the filing of the petition;194
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be195
a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist196
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under197
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in198
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a199
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professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical200
social worker, other than the physician, psychologist, or physician assistant, nurse201
practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor,202
or licensed clinical social worker who completed the affidavit attached to the petition203
pursuant to paragraph (1) of subsection (d) of Code Section 29-4-10. The evaluation204
shall be conducted within 72 hours of the time the order was issued and a written report205
shall be furnished to the court and made available to the parties within this time frame,206
which evaluation and report shall be governed by the provisions of subsection (d) of Code207
Section 29-4-11;208
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings209
on the proposed ward, which notice shall:210
(A) Be served personally on the proposed ward by an officer of the court and shall not211
be served by mail;212
(B) Inform the proposed ward that a petition has been filed to have an emergency213
guardian appointed for the proposed ward, that the proposed ward has the right to attend214
any hearing that is held, and that, if an emergency guardian is appointed, the proposed215
ward may lose important rights to control the management of the proposed ward's216
person;217
(C) Inform the proposed ward of the place and time at which the proposed ward shall218
submit to the evaluation provided for by paragraph (3) of this subsection;219
(D) Inform the proposed ward of the appointment of legal counsel; and220
(E) Inform the proposed ward of the date and time of the hearing on the emergency221
guardianship; and222
(5) Appoint an emergency guardian to serve until the emergency hearing, with or without223
prior notice to the proposed ward, if the threatened risk is so immediate and the potential224
harm so irreparable that any delay is unreasonable and the existence of the threatened risk225
and potential for irreparable harm is certified by the affidavit of a physician licensed to226
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practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under
227
Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43, a
228
nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or229
registered under Chapter 26 of Title 43, a professional counselor licensed under Chapter230
10A of Title 43, or a licensed clinical social worker. Appointment of an emergency231
guardian under this paragraph is not a final determination of the proposed ward's need for232
a nonemergency guardian. Any emergency guardian appointed under this paragraph shall233
have only those powers and duties specifically enumerated in the letters of emergency234
guardianship, and the powers and duties shall not exceed those absolutely necessary to235
respond to the immediate threatened risk to the ward."236
SECTION 8.237
Said title is further amended by revising Code Section 29-4-16, relating to conduct of238
emergency guardianship hearing and limitations on emergency guardianship, as follows:239
"29-4-16.240
(a) The court shall conduct the emergency guardianship hearing, at the time and date set241
forth in its order, to determine whether there is clear and convincing evidence of the need242
for an emergency guardianship in light of the evidence taken at the hearing. In addition to243
the evidence at the hearing, the court may consider the evaluation report and any response244
filed by the proposed ward. The proposed ward may also challenge, by appropriate245
evidence and argument, the sufficiency and weight of the results and conclusions of the246
evaluation and written report and the qualifications, experience, or abilities of the person247
performing the evaluation. The burden of proof shall be upon the petitioner. Upon the248
consent of the petitioner and the proposed ward, the court may grant a continuance of the249
case for a period not to exceed 30 days.250
(b) If the court at the emergency hearing finds that an emergency guardianship is251
necessary, the court shall order the emergency guardianship; provided, however, that:252
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(1) Any emergency guardian shall have only those powers and duties specifically
253
enumerated in the letters of emergency guardianship and the powers and duties shall not254
exceed those absolutely necessary to respond to the immediate threatened risk to the255
ward;256
(2) The court may order the emergency guardian to make any report the court requires;257
(3) If the court finds that the proposed ward has one or more developmental disabilities
258
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is259
a need for an emergency guardianship unless the evidence shows by clear and convincing260
evidence that, due to such developmental disability or disabilities and other factors that261
may be present, the proposed ward lacks sufficient capacity to make or communicate262
significant responsible decisions concerning his or her health or safety and there is an263
immediate and substantial risk of death or serious physical injury, illness, or disease264
unless an emergency guardian is appointed; and265
(3)(4) The emergency guardianship shall terminate on the earliest of:266
(A) The court's removal of the emergency guardian, with or without cause;267
(B) The effective date of the appointment of a guardian;268
(C) Unless otherwise specified in the order of dismissal, the dismissal of a petition for269
appointment of a guardian;270
(D) The date specified for the termination in the order appointing the emergency271
guardian;272
(E) Sixty days from the date of appointment of the emergency guardian, provided that273
the court had jurisdiction to issue such order under paragraph (1) of Code274
Section 29-11-12; or275
(F) Ninety days from the date of appointment of the emergency guardian, provided that276
the court had jurisdiction to issue such order under paragraph (2) or (3) of Code277
Section 29-11-12."278
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SECTION 9.
279
Said title is further amended in Code Section 29-4-41, relating to modification of280
guardianship, by revising subsection (b) as follows:281
"(b) If the petition for modification alleges a significant change in the capacity of the ward,282
it must be supported either by the affidavits of two persons who have knowledge of the283
ward, one of whom may be the petitioner, or of a physician licensed to practice medicine284
under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of285
Title 43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner
286
or clinical nurse specialist in psychiatric/mental health licensed or registered under287
Chapter 26 of Title 43, a professional counselor licensed under Chapter 10A of Title 43,288
or a licensed clinical social worker, setting forth the supporting facts and determinations. 289
If, after reviewing the petition and the affidavits, the court determines that there is no290
probable cause to believe that there has been a significant change in the capacity of the291
ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall292
order that an evaluation be conducted, in accordance with the provisions of subsection (d)293
of Code Section 29-4-11. If, after reviewing the evaluation report, the court finds that there294
is no probable cause to believe that there has been a significant change in the capacity of295
the ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall296
schedule a hearing, with notice as the court deems appropriate."297
SECTION 10.298
Said title is further amended in Code Section 29-4-42, relating to termination of299
guardianship, required evidence, burden of proof, and return of property, by revising300
subsection (b) as follows:301
"(b) A petition for termination must be supported either by the affidavits of two persons302
who have knowledge of the ward, one of whom may be the petitioner, or of a physician303
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to304
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practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of305
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health306
licensed or registered under Chapter 26 of Title 43, a professional counselor licensed under307
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the supporting308
facts and determinations. If, after reviewing the petition and the affidavits, the court309
determines that there is no probable cause to believe that the guardianship should be310
terminated, the court shall dismiss the petition. If the petition is not dismissed, the court311
shall order that an evaluation be conducted, in accordance with the provisions of subsection312
(d) of Code Section 29-4-11. If, after reviewing the evaluation report, the court finds that313
there is no probable cause to believe that the guardianship should be terminated, the court314
shall dismiss the petition. If the petition is not dismissed, the court shall schedule a315
hearing, with such notice as the court deems appropriate."316
SECTION 11.317
Said title is further amended in Code Section 29-4-70, relating to right of ward to appeal,318
procedure, and appointment of emergency guardian, by revising subsection (d) as follows:319
"(d) Pending any appeal, the superior court or a probate court that is described in320
paragraph (2) of Code Section 15-9-120 may appoint an emergency guardian with such321
powers and duties as are described in Code Section 29-4-16; provided, however, that an322
emergency guardian may be appointed only upon the filing of an affidavit of a physician323
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to324
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of325
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health326
licensed or registered under Chapter 26 of Title 43, a professional counselor licensed under327
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the existence of328
the emergency circumstances described in subsection (d) of Code Section 29-4-14 and after329
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a hearing at which other evidence may be presented. The appointment of an emergency
330
guardian is not appealable."331
SECTION 12.332
Said title is further amended in Code Section 29-5-1, relating to conservator for adults, best333
interest of the adult, no presumption of need for conservator, and objective of334
conservatorship, by adding a new paragraph to subsection (e) to read as follows:335
"(3) An adult shall not be presumed to be in need of a conservator solely because of a
336
finding that the adult has one or more developmental disabilities as defined in paragraph337
(8) of Code Section 37-1-1."338
SECTION 13.339
Said title is further amended in Code Section 29-5-10, relating to petition for appointment340
of conservator and requirements of petition, by revising paragraph (1) of subsection (c) as341
follows:342
"(c)(1) The petition shall be sworn to by two or more petitioners or shall be supported343
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,344
a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant345
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in346
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a347
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical348
social worker, or, if the proposed ward is a patient in any federal medical facility in which349
such a physician, psychologist, or physician assistant, nurse practitioner, clinical nurse350
specialist in psychiatric/mental health, professional counselor, or licensed clinical social351
worker is not available, a physician, psychologist, or physician assistant, nurse352
practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor,353
or licensed clinical social worker authorized to practice in that such federal facility."354
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SECTION 14.
355
Said title is further amended in Code Section 29-5-11, relating to prerequisite finding prior356
to appointment of conservator, notice, evaluation, and written report, by revising357
subsection (d) as follows:358
"(d)(1) If the petition is not dismissed pursuant to subsection (b) of this Code section, the359
court shall appoint an evaluating physician
evaluator who shall be a physician licensed360
to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice361
under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of Title 43,362
a nurse practitioner or clinical nurse specialist in psychiatric/mental health licensed or363
registered under Chapter 26 of Title 43, a professional counselor licensed under Chapter364
10A of Title 43, or a licensed clinical social worker, or, if the proposed ward is a patient365
in any federal medical facility in which such a physician, psychologist, or physician366
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,367
professional counselor, or licensed clinical social worker is not available, a physician,368
psychologist, or physician assistant, nurse practitioner, clinical nurse specialist in369
psychiatric/mental health, professional counselor, or licensed clinical social worker370
authorized to practice in that such federal facility other than the physician, psychologist,371
or physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental372
health, professional counselor, or licensed clinical social worker who completed the373
affidavit attached to the petition pursuant to subsection (c) of Code Section 29-5-10.374
(2) When evaluating the proposed ward, the physician, psychologist, or physician375
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,376
professional counselor, or licensed clinical social worker shall explain the purpose of the377
evaluation to the proposed ward. The proposed ward may remain silent. Any statements378
made by the proposed ward during the evaluation shall be privileged and shall be379
inadmissable as evidence in any proceeding other than a proceeding under this chapter. 380
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The proposed ward's legal counsel shall have the right to be present but shall not
381
participate in the evaluation.382
(3) The evaluation shall be conducted with as little interference with the proposed ward's383
activities as possible. The evaluation shall take place at the place and time set in the384
notice to the proposed ward and to his or her legal counsel and the time set shall not be385
sooner than the fifth day after the service of notice on the proposed ward. The court,386
however, shall have the exclusive power to change the place and time of the examination387
at any time upon reasonable notice being given to the proposed ward and to his or her388
legal counsel. If the proposed ward fails to appear, the court may order that the proposed389
ward be taken directly to and from a medical facility, office of a physician, psychologist,390
or
physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental391
health, professional counselor, or licensed clinical social worker for purposes of392
evaluation only. The evaluation shall be conducted during the normal business hours of393
the facility or office, and the proposed ward shall not be detained in the facility or office394
overnight. The evaluation may include, but not be limited to:395
(A) A self-report from the proposed ward, if possible;396
(B) Questions and observations of the proposed ward to assess the functional abilities397
of the proposed ward;398
(C) A review of the records for the proposed ward, including, but not limited to,399
medical records, medication charts, and other available records;400
(D) An assessment of cultural factors and language barriers that may impact the401
proposed ward's abilities and living environment; and402
(E) All other factors the evaluator determines to be appropriate to the evaluation.403
(4) A written report shall be filed with the court no later than seven days after the404
evaluation, and the court shall serve a copy of the report by first-class mail upon the405
proposed ward and the proposed ward's legal counsel and guardian ad litem, if appointed.406
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(5) The report shall be signed under oath by the physician, psychologist, or licensed407
clinical social worker evaluator and shall:408
(A) State the circumstances and duration of the evaluation, including a summary of409
questions or tests utilized, and the elements of the evaluation;410
(B) List all persons and other sources of information consulted in evaluating the411
proposed ward;412
(C) Describe the proposed ward's mental and physical state and condition, including413
all observed facts considered by the physician, psychologist, or licensed clinical social414
worker evaluator;415
(D) Describe the overall social condition of the proposed ward, including support, care,416
education, and well-being; and417
(E) Describe the needs of the proposed ward and their foreseeable duration.418
(6) The proposed ward's legal counsel may file a written response to the evaluation,419
provided the response is filed no later than the date of the commencement of the hearing420
on the petition for conservatorship. The response may include, but is not limited to,421
independent evaluations, affidavits of individuals with personal knowledge of the422
proposed ward, and a statement of applicable law. In the response, the proposed ward's423
legal counsel may also challenge the sufficiency and weight of the results and424
conclusions of the evaluation and written report and the qualifications, experience, or425
abilities of the person performing the evaluation."426
SECTION 15.427
Said title is further amended in Code Section 29-5-12, relating to judicial review and428
proceedings, by revising subsection (d) as follows:429
(d)(1) The hearing shall be held in a courtroom or, for good cause shown, at any other430
place as the court may set. At the request of the proposed ward or the proposed ward's431
legal counsel and for good cause shown, the court may exercise its discretion to exclude432
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the public from the hearing and the record shall reflect the court's action. The proposed
433
ward or the proposed ward's legal counsel may waive the appearance of the proposed434
ward at the hearing.435
(2) The hearing shall be recorded by either a certified court reporter or a sound-recording436
device. The recording shall be retained for not less than 45 days from the date of the437
entry of the order described in Code Section 29-5-138.438
(3) The court shall apply the rules of evidence applicable in civil cases.439
(4) At the hearing, the proposed ward may also challenge, by appropriate evidence and
440
argument, the sufficiency and weight of the results and conclusions of the evaluation and441
written report and the qualifications, experience, or abilities of the person performing the442
evaluation. The proposed ward shall have the right to present such evidence and443
argument regardless of whether the proposed ward's legal counsel raised such matters in444
a written response submitted by the proposed ward's legal counsel pursuant to445
paragraph (6) of subsection (d) of Code Section 29-5-11.446
(5) The court shall utilize the criteria in Code Section 29-5-1 to determine whether there447
is clear and convincing evidence of the need for a conservatorship in light of the evidence448
taken at the hearing. In addition to the evidence at the hearing, the court may consider449
the evaluation report and any response filed by the proposed ward. The burden of proof450
shall be upon the petitioner.451
(6) If the court finds that the proposed ward has one or more developmental disabilities452
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is453
a need for a conservatorship unless the evidence shows by clear and convincing evidence454
that, due to such developmental disability or disabilities and other factors that may be455
present, the proposed ward lacks sufficient capacity to make or communicate significant456
responsible decisions concerning the management of his or her property.457
(5)(7) Upon determination of the need for a conservatorship, the court shall determine458
the powers, if any, which are to be retained by the proposed ward, in accordance with the459
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provisions of Code Section 29-5-21 and whether any additional powers shall be granted
460
to the conservator pursuant to the provisions of subsections (b) and (c) of Code461
Section 29-5-23.462
(6)
(8) If the court determines that a conservatorship is necessary and the proposed ward463
is present, the proposed ward may suggest any person as conservator. The court shall464
select as conservator the person who shall serve the best interest of the ward.465
(7)(9) In any procedure under this chapter in which the judge of the court is unable to466
hear a case within the time required for a hearing on the petition for conservatorship, the467
judge shall appoint an individual to serve to hear the case and exercise all the jurisdiction468
of the court in the case. Any individual so appointed shall be a member of the State Bar469
of Georgia who is qualified to serve as the probate judge in that county and who is, in the470
opinion of the appointing judge, qualified for the duties by training and experience. The471
appointment may be made on a case-by-case basis or by making a standing appointment472
of one or more individuals. Any individual who receives a standing appointment shall473
serve at the pleasure of the judge who makes the appointment or the judge's successor in474
office. The compensation of an individual so appointed shall be as agreed upon by the475
judge who makes the appointment and the individual appointed, with the approval of the476
governing authority of the county for which the individual is appointed, and shall be paid477
from county funds. All fees collected for the service of the appointed individual shall be478
paid into the general funds of the county."479
SECTION 16.480
Said title is further amended in Code Section 29-5-14, relating to appointment of emergency481
conservator and requirements of petition, by revising paragraph (1) of subsection (d) as482
follows:483
"(d)(1) The petition shall be sworn to by two or more petitioners or shall be supported484
by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43,485
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a psychologist licensed to practice under Chapter 39 of Title 43, a physician assistant486
licensed under Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in487
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a488
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical489
social worker, or, if the proposed ward is a patient in any federal medical facility in which490
such a physician, psychologist, or physician assistant, nurse practitioner, clinical nurse491
specialist in psychiatric/mental health, professional counselor, or licensed clinical social492
worker is not available, a physician, psychologist, or physician assistant, nurse493
practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor,494
or licensed clinical social worker authorized to practice in that such federal facility."495
SECTION 17.496
Said title is further amended in Code Section 29-5-15, relating to review of petition,497
dismissal, and requirements of court upon finding need for emergency conservator, by498
revising subsection (c) as follows:499
"(c) If the court determines that there is probable cause to believe that the proposed ward500
is in need of an emergency conservator, the court shall:501
(1) Immediately appoint legal counsel to represent the proposed ward at the emergency502
hearing, which counsel may be the same counsel who is appointed to represent the503
proposed ward in the hearing on the petition for guardianship or conservatorship, if any504
such petition has been filed, and shall inform counsel of the appointment;505
(2) Order an emergency hearing to be conducted not sooner than three days nor later than506
five days after the filing of the petition;507
(3) Order an evaluation of the proposed ward by a physician an evaluator who shall be508
a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist509
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under510
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in511
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psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a512
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical513
social worker, other than the physician, psychologist, or physician assistant, nurse514
practitioner, clinical nurse specialist in psychiatric/mental health, professional counselor,515
or licensed clinical social worker who completed the affidavit attached to the petition516
pursuant to paragraph (1) of subsection (d) of Code Section 29-5-10, to. Such evaluation517
shall be conducted within 72 hours of the time such order was issued, and a written report518
to shall be furnished to the court and made available to the parties within 72 hours such519
time, which evaluation and report shall be governed by the provisions of subsection (d)520
of Code Section 29-5-14 29-5-11;521
(4) Immediately notify the proposed ward of the proceedings by service of all pleadings522
on the proposed ward, which notice shall:523
(A) Be served personally on the proposed ward by an officer of the court and shall not524
be served by mail;525
(B) Inform the proposed ward that a petition has been filed to have an emergency526
conservator appointed for the proposed ward, that the proposed ward has the right to527
attend any hearing that is held, and that, if an emergency conservator is appointed, the528
proposed ward may lose important rights to control the management of the proposed529
ward's property;530
(C) Inform the proposed ward of the place and time at which the proposed ward shall531
submit to the evaluation provided for by paragraph (3) of this subsection;532
(D) Inform the proposed ward of the appointment of legal counsel; and533
(E) Inform the proposed ward of the date and time of the hearing on the emergency534
conservatorship; and535
(5) Appoint an emergency conservator to serve until the emergency hearing, with or536
without prior notice to the proposed ward, if the threatened risk is so immediate and the537
potential harm so irreparable that any delay is unreasonable and the existence of the538
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threatened risk and potential for irreparable harm is certified by the affidavit of a
539
physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist540
licensed to practice under Chapter 39 of Title 43, a physician assistant licensed under
541
Chapter 34 of Title 43, a nurse practitioner or clinical nurse specialist in542
psychiatric/mental health licensed or registered under Chapter 26 of Title 43, a543
professional counselor licensed under Chapter 10A of Title 43, or a licensed clinical544
social worker; provided, however, that, pending the emergency hearing, the court shall545
order that no withdrawals may be made from any account on the authority of the546
proposed ward's signature without the court's prior approval and that the emergency547
conservator shall not expend any funds of the proposed ward without prior court548
approval. Appointment of an emergency conservator under this paragraph is not a final549
determination of the proposed ward's need for a nonemergency conservator. Any550
emergency conservator appointed under this paragraph shall have only those powers and551
duties specifically enumerated in the letters of emergency conservatorship; such powers552
and duties shall not exceed those absolutely necessary to respond to the immediate553
threatened risk to the ward; and such powers and duties shall be subject to the limitations554
provided in this paragraph regarding the expenditures of funds of the ward."555
SECTION 18.556
Said title is further amended by revising Code Section 29-5-16, relating to emergency557
conservatorship hearing and limitations on powers of emergency conservator, as follows:558
"29-5-16.559
(a) The court shall conduct the emergency conservatorship hearing at the time and date set560
forth in its order to determine whether there is clear and convincing evidence of the need561
for an emergency conservatorship in light of the evidence taken at the hearing. In addition562
to the evidence at the hearing, the court may consider the evaluation report and any563
response filed by the proposed ward. The proposed ward may also challenge, by564
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appropriate evidence and argument, the sufficiency and weight of the results and565
conclusions of the evaluation and written report and the qualifications, experience, or566
abilities of the person performing the evaluation. The burden of proof shall be upon the567
petitioner. Upon the consent of the petitioner and the proposed ward, the court may grant568
a continuance of the case for a period not to exceed 30 days.569
(b) If the court at the emergency hearing finds that an emergency conservatorship is570
necessary, the court shall order the emergency conservatorship; provided, however, that:571
(1) Any emergency conservator shall have only those powers and duties specifically572
enumerated in the letters of emergency conservatorship and the powers and duties shall573
not exceed those absolutely necessary to respond to the immediate threatened risk to the574
ward;575
(2) The court may order the emergency conservator to make any report the court576
requires;577
(3) If the court finds that the proposed ward has one or more developmental disabilities578
as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is579
a need for an emergency conservatorship unless the evidence shows by clear and580
convincing evidence that, due to such developmental disability or disabilities and other581
factors that may be present, the proposed ward lacks sufficient capacity to make or582
communicate significant responsible decisions concerning the management of his or her583
property and there is an immediate and substantial risk of irreparable waste or dissipation584
of the proposed ward's property unless an emergency conservator is appointed; and585
(3)(4) The emergency conservatorship shall terminate on the earliest of:586
(A) The court's removal of the emergency conservator, with or without cause;587
(B) The effective date of the appointment of a conservator;588
(C) Unless otherwise specified in the order of dismissal, the dismissal of a petition for589
appointment of a conservator;590
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(D) The date specified for the termination in the order appointing the emergency
591
conservator; or592
(E) Sixty days from the date of appointment of the emergency conservator."593
SECTION 19.594
Said title is further amended in Code Section 29-5-23, relating to authority of conservator595
and cooperation with guardian or other interested parties, by revising paragraph (13) of596
subsection (a) and paragraph (5) of subsection (c) as follows:597
"(13) Compromise any contested or doubtful claim for or against the ward if the598
proposed gross settlement as defined in Code Section 29-3-3
is in the amount599
of $25,000.00 or less, provided that, for purposes of this paragraph, the term 'gross600
settlement' means the present value of all amounts paid or to be paid in settlement of the601
claim, including cash, medical expenses, expenses of litigation, attorney's fees, and any602
amounts allocated to a structured settlement or other similar financial arrangement; and"603
"(5) To compromise a contested or doubtful claim for or against the ward if the proposed604
gross settlement as defined in Code Section 29-3-3 is more than $25,000.00, provided605
that, for purposes of this paragraph, the term 'gross settlement' means the present value606
of all amounts paid or to be paid in settlement of the claim, including cash, medical607
expenses, expenses of litigation, attorney's fees, and any amounts allocated to a structured608
settlement or other similar financial arrangement;"609
SECTION 20.610
Said title is further amended in Code Section 29-5-71, relating to modification of611
conservatorship, contents of petition for modification, and burden of proof, by revising612
subsection (b) as follows:613
"(b) If the petition for modification alleges a significant change in the capacity of the ward,614
it must be supported either by the affidavits of two persons who have knowledge of the615
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ward, one of whom may be the petitioner, or of a physician licensed to practice medicine
616
under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title617
43, a physician assistant licensed under Chapter 34 of Title 43, a nurse practitioner or
618
clinical nurse specialist in psychiatric/mental health licensed or registered under Chapter 26619
of Title 43, a professional counselor licensed under Chapter 10A of Title 43, or a licensed620
clinical social worker, setting forth the supporting facts and determinations. If, after621
reviewing the petition and the affidavits, the court determines that there is no probable622
cause to believe that there has been a significant change in the capacity of the ward, the623
court shall dismiss the petition. If the petition is not dismissed, the court shall order that624
an evaluation be conducted, in accordance with the provisions of subsection (d) of Code625
Section 29-5-11. If, after reviewing the evaluation report, the court finds that there is no626
probable cause to believe that there has been a significant change in the capacity of the627
ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall628
schedule a hearing, with such notice as the court deems appropriate."629
SECTION 21.630
Said title is further amended in Code Section 29-5-72, relating to termination of631
conservatorship, required evidence to support, burden of proof, and death of ward, by632
revising subsection (b) as follows:633
"(b) A petition for termination must be supported either by the affidavits of two persons634
who have knowledge of the ward, one of whom may be the petitioner, or of a physician635
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to636
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of637
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health638
licensed or registered under Chapter 26 of Title 43, a professional counselor licensed under639
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the supporting640
facts and determinations. If, after reviewing the petition and the affidavits, the court641
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determines that there is no probable cause to believe that the conservatorship should be
642
terminated, the court shall dismiss the petition. If the petition is not dismissed, the court643
shall order that an evaluation be conducted in accordance with the provisions of644
subsection (d) of Code Section 29-5-11. If, after reviewing the evaluation report, the court645
finds that there is no probable cause to believe that the conservatorship should be646
terminated, the court shall dismiss the petition. If the petition is not dismissed, the court647
shall schedule a hearing with such notice as the court deems appropriate."648
SECTION 22.649
Said title is further amended in Code Section 29-5-110, relating to proceedings for appeal,650
appointment of guardians ad litem, bond and security prior to removal, liability of surety of651
predecessor conservator, and jurisdiction, by revising subsection (d) as follows:652
"(d) Pending any appeal, the superior court or a probate court that is described in653
paragraph (2) of Code Section 15-9-120 may appoint an emergency conservator with654
powers and duties as are described in Code Section 29-5-16; provided, however, that such655
emergency conservator may be appointed only upon the filing of an affidavit of a physician656
licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to657
practice under Chapter 39 of Title 43, a physician assistant licensed under Chapter 34 of
658
Title 43, a nurse practitioner or clinical nurse specialist in psychiatric/mental health659
licensed or registered under Chapter 26 of Title 43, a professional counselor licensed under660
Chapter 10A of Title 43, or a licensed clinical social worker, setting forth the existence of661
the emergency circumstances described in subsection (d) of Code Section 29-5-14 and after662
a hearing at which other evidence may be presented. The appointment of an emergency663
conservator is not appealable."664
SECTION 23.665
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Said title is further amended by revising Code Section 29-9-16, relating to compensation to
666
physicians, psychologists, or licensed clinical social workers, as follows:667
"29-9-16.668
(a) For the evaluation or examination required by subsection (d) of Code Section 29-4-11,669
subsection (c) of Code Section 29-4-15, subsection (b) of Code Section 29-4-42,670
subsection (d) of Code Section 29-5-11, subsection (c) of Code Section 29-5-15, or671
subsection (b) of Code Section 29-5-71, the evaluating physician, psychologist, or
672
physician assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,673
professional counselor, or licensed clinical social worker shall receive a reasonable fee674
commensurate with the task performed, plus actual expenses.675
(b) In the event the attendance of the evaluating physician, psychologist, or physician676
assistant, nurse practitioner, clinical nurse specialist in psychiatric/mental health,677
professional counselor, or licensed clinical social worker shall be required by the court for678
a hearing under subsection (d) of Code Section 29-4-12, subsection (a) of Code Section679
29-4-16, subsection (b) of Code Section 29-4-42, subsection (d) of Code Section 29-5-12,680
subsection (a) of Code Section 29-5-16, or subsection (b) of Code Section 29-5-71, other681
than pursuant to a subpoena requested by a party to the proceeding, the evaluating682
physician, psychologist, or physician assistant, nurse practitioner, clinical nurse specialist683
in psychiatric/mental health, professional counselor, or licensed clinical social worker shall684
receive a reasonable fee commensurate with the task performed, plus actual expenses.685
(c) All fees and expenses payable under subsection (a) or (b) of this Code section shall be686
assessed by the court and paid in accordance with the provisions of Code Section 29-9-3."687
SECTION 24.688
All laws and parts of laws in conflict with this Act are repealed. 689
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