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2018 Georgia Code 29-5-81 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 29-5-81 Case Law from Google Scholar Amendments to OCGA 29-5-81

TITLE 29 GUARDIAN AND WARD

Section 5. Conservators of Adults, 29-5-1 through 29-5-140.

ARTICLE 9 DISMISSAL OF CONSERVATOR

29-5-81. Final settlement; appearance by ward or successor conservator; return of property.

  1. A ward who has been restored to capacity, the personal representative of a deceased ward, a successor conservator, or any interested person may petition the court for an order requiring a conservator or that conservator's personal representative to appear and submit to a final settlement of the conservator's accounts. Alternatively, the court on its own motion may issue such an order. The settlement period shall begin from the commencement of the conservatorship or the end of the period covered by the last interim settlement of accounts. If the conservator fails or refuses to appear as cited, the court may proceed without the appearance of the conservator. If the conservator has been required to give bond, the surety on the bond shall be bound by the settlement if the surety is given notice by first-class mail of the settlement proceeding.
  2. A conservator, a former conservator, the conservator of a conservator, or the personal representative of a deceased conservator shall be allowed to cite the ward, the ward's personal representative, or a successor conservator to appear and be present at a final settlement of the conservator's accounts and discharge from liability in the manner provided in this Code section. The settlement period shall begin with the period of time from the commencement of the conservatorship or the end of the period covered by the last interim settlement of accounts. Notice by first-class mail of the settlement proceeding must be given to the surety on the conservator's bond and to the ward's guardian, if any. If the ward has not been restored to capacity or if the conservator is the ward's personal representative, the court shall appoint a guardian ad litem for the ward who shall be served personally.
  3. Upon the return of a notice referred to in subsections (a) and (b) of this Code section, the court shall proceed to examine all returns and accounts of the conservator during the settlement period and to hear any objection to the settlement and discharge.
  4. The court shall order any property in the hands of the conservator to be delivered to the ward, the ward's personal representative, or to the successor conservator and shall issue a judgment, writ of fieri facias, and execution thereon for any sums found to be due from the conservator. If the court is satisfied that the conservator has faithfully and honestly discharged the office, an order shall be entered releasing and discharging the conservator from all liability.

(Code 1981, §29-5-81, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 1790, former Code 1873, § 1839, former Code 1882, § 1839, and former Code 1933, § 49-301, are included in the annotations for this Code section.

Constitutionality.

- Davis v. Harper, 54 Ga. 180 (1875) (decided under former Code 1873, § 1839).

Ward seeking accounting must apply to probate court.

- Where duly qualified guardian had not filed for approval any annual returns, ward should have applied to ordinary (now judge of probate court), instead of superior court, for accounting which ward was seeking. Moon v. Moon, 215 Ga. 110, 109 S.E.2d 39 (1959) (decided under former Code 1933, § 49-301).

Of age ward can cite former guardian for settlement.

- Upon arriving at age, ward can cite former guardian, to appear before ordinary (now judge of probate court) for settlement of the guardian's accounts, whether the guardian was, in fact, guardian at the time of such citation and hearing or not. Hood v. Perry, 73 Ga. 319 (1884) (decided under former Code 1882, § 1839).

Relationship of guardian and ward does not terminate for settlement purposes when ward reaches majority. Pettigrew v. Williams, 65 Ga. App. 576, 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

When ward reaches majority, relationship of guardian and ward continues only for purposes of settlement. Donehoo v. Commercial Bank & Trust Co., 124 Ga. App. 588, 184 S.E.2d 690 (1971) (decided under former Code 1933, § 49-301).

Ward is not barred by statute of limitations in seeking accounting and settlement with guardian. Pettigrew v. Williams, 65 Ga. App. 576, 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

Approval not conclusive when given when ward was minor.

- Approval of returns by probate court when ward was an infant is not conclusive against ward. Pettigrew v. Williams, 65 Ga. App. 576, 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

Application to executor of deceased guardian.

- See Cunningham v. Schley, 34 Ga. 395 (1866) (decided under former Code 1863, § 1790).

Citation for settlement of non-resident guardian.

- A guardian who has obtained letters of guardianship in one county but lives in another county becomes a quasi officer of the appointing court and may be cited by ordinary (now judge of probate court) of that county. Usry v. Usry, 82 Ga. 198, 8 S.E. 60 (1888) (decided under former Code 1882, § 1839).

Citation of non-resident guardian when not subject to court's jurisdiction.

- An ordinary (now judge of probate court) does not have jurisdiction to cite for settlement a guardian who was not appointed by the judge and who had never, in any way, been subject to jurisdiction of such judge and acknowledgment of service of citation was no waiver of jurisdiction where guardian did not appear or plead to the citation. Jackson v. Hitchcock, 48 Ga. 491 (1873) (decided under former Code 1873, § 1839).

Pleading which attacks approved returns of guardian must be specific. Pettigrew v. Williams, 65 Ga. App. 576, 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

Petitions in substantial compliance with law.

- See Weldon v. Patrick, 69 Ga. 724 (1882) (decided under former Code 1882, § 1839); De Loach v. Waters, 54 Ga. App. 386, 188 S.E. 58 (1936);(decided under former Code 1933, § 49-301).

Action for breach of fiduciary duty was litigated by consent in an accounting proceeding.

- Although the record showed that a conservator did not bring a claim pursuant to O.C.G.A. § 29-5-93(a)(4) in writing, but sought only an accounting pursuant to O.C.G.A. § 29-5-81, the conservator did not object when the administrator raised the issue at the hearing. As a result, the issue of whether the conservator breached the conservator's fiduciary duty was litigated by the implied consent of the parties pursuant to O.C.G.A. § 9-11-15(b). In re Hudson, 300 Ga. App. 340, 685 S.E.2d 323 (2009).

Conflict of interest when the same person is conservator and executrix.

- O.C.G.A. § 29-5-81(b) resolved any potential conflict of interest when the ward's child served both as conservator and as executrix of the parent's will by requiring the appointment of a guardian ad litem to represent the deceased adult ward and to protect the ward's property rights. The guardian ad litem was served personally and reviewed and approved the conservator's final report. Ray v. Stewart, 287 Ga. 789, 700 S.E.2d 367 (2010).

Notice by publication.

- Constructive notice by publication of a conservator's petition for final settlement and discharge from the conservatorship under O.C.G.A. §§ 29-5-80(a) and29-5-81(b) did not violate the due process rights of a child of the ward who stood to benefit from the ward's will; the child did not have a legally protected interest in the discharge proceedings. Ray v. Stewart, 287 Ga. 789, 700 S.E.2d 367 (2010).

Liability for punitive damages.

- Conservator's bond pursuant to O.C.G.A. § 29-5-40 et seq. does not cover punitive damages. In re Estate of Gladstone, 303 Ga. 547, 814 S.E.2d 1 (2018).

Judgment that a conservator's bond covered punitive damages even though such damages were not expressly provided for under O.C.G.A. § 29-5-40 et seq. or under the provisions of the bond itself was reversed because a conservator's bond pursuant to § 29-5-40 et seq. does not cover punitive damages. In re Estate of Gladstone, 303 Ga. 547, 814 S.E.2d 1 (2018).

Cited in Johnston v. James, 48 Ga. 554 (1873); Jennings v. Longino, 49 Ga. App. 494, 176 S.E. 94 (1934); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, § 164 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, § 210 et seq.

ALR.

- Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

Cases Citing O.C.G.A. § 29-5-81

Total Results: 3  |  Sort by: Relevance  |  Newest First

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In re Est. of Gladstone, 814 S.E.2d 1 (Ga. 2018).

Cited 9 times | Published | Supreme Court of Georgia | May 7, 2018

...The references to "damages" and "judgment" are tied to the ward's assets: in the event of termination of a conservatorship or the resignation of the conservator, see OCGA § 29-5-80, and upon final settlement of accounts, the court shall issue a judgment "for any sums found to be due." OCGA § 29-5-81 (d)....
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in Re Est. of Gladstone, 303 Ga. 547 (Ga. 2018).

Cited 7 times | Published | Supreme Court of Georgia | May 7, 2018

...The references to “damages” and “judgment” are tied to the ward’s assets: in the event of termination of a conservatorship or the resignation of the conservator, see OCGA § 29-5-80, and upon final settlement of accounts, the court shall issue a judgment “for any sums found to be due.” OCGA § 29-5-81 (d)....
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Ray v. Stewart, 700 S.E.2d 367 (Ga. 2010).

Cited 4 times | Published | Supreme Court of Georgia | Sep 20, 2010 | 287 Ga. 789, 2010 Fulton County D. Rep. 3025

...re and Casualty Company (State Farm). Notice was published in the county newspaper as required by OCGA § 29-5-80(a), and because Stewart was also the ward's personal representative, a guardian ad litem was appointed to represent the ward under OCGA § 29-5-81(b)....
...Nineteen months later, appellant Brenda Ray, another daughter of the deceased ward and a potential beneficiary under his will, [1] filed a motion to set aside the judgment under OCGA § 9-11-60. In essence, Ray claimed that OCGA §§ 29-5-80(a) and 29-5-81(b), which govern the settlement of a ward's estate and termination of a conservatorship, violate due process because interested parties, such as she, are not given actual notice of the proceedings....
...th the time for filing such objections. Id. If no objection is filed, or if the court determines over objection that the dismissal of a conservator is appropriate, an order shall issue dismissing the conservator from office. OCGA § 29-5-80(b). OCGA § 29-5-81(b) addresses which persons or entities are entitled to receive actual notice of a final settlement of the conservator's accounts and discharge from liability, as follows: A conservator, a former conservator, the conservator of a conservato...
...As Stewart was both the conservator and the ward's personal representative under the terms of the will, the court followed the statutory requirements by appointing a guardian ad litem who received personal service of the discharge proceedings. Id. Ray does not dispute that the provisions of OCGA § 29-5-81(b) were followed in this case. She claims, however, that as a potential beneficiary of the deceased ward's estate, she has a legally protected interest in the conservator's settlement and discharge proceedings, and that OCGA § 29-5-81(b) does not afford her due process because it does not require actual notice to those in her position....
...of any will to *370 give notice to the propounders and beneficiaries of any other wills of the testator offered for probate in the same county"). Accordingly, we hold that constructive notice by publication as encompassed in OCGA §§ 29-5-80(a) and 29-5-81 (b) does not deny one in Ray's position due process of law under the federal or Georgia Constitutions. 2. We further reject Ray's claim that Stewart as the executrix of the decedent's estate had a conflict of interest and was not legally available to respond to the discharge petition. OCGA § 29-5-81(b) resolves any potential conflict of interest where the same person serves as conservator and executrix by requiring the appointment of a guardian ad litem to represent the deceased adult ward and to protect the ward's property rights....
...manner she determines to be fair and reasonable. The residue of the estate was to be distributed to the eight children in a similar fashion. [2] Although the trial court construed Ray's due process challenge to apply to both OCGA §§ 29-5-80(a) and 29-5-81(b), on appeal Ray appears to focus her claim exclusively on the latter statute....