O.C.G.A. § 29-2-16 (2019)

Annotations

Cross references. - Grandparent defined, § 19-7-3. County administrators as ex officio county guardians, § 29-3-1.

Law reviews. - For article, ‘‘Wills, Trusts & Administration of Estates,’’ see 53 Mercer L. Rev. 499 (2001).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2518, former Civil Code 1910, § 3039, Ga. L. 1922, p. 46, § 1, former Code 1933, § 49-107, and former O.C.G.A. § 29-4-8 are included in the annotations for this Code section. Contest for guardianship of person and property of one adjudged incompetent. - Former Civil Code 1895, § 2518 (former O.C.G.A. § 29-4-8) was

applicable to a contest for guardianship of the person and property of one who has been adjudged incapable of managing one’s estate and therefore liable to have a guardian appointed for that person. Armor v. Moore, 104 Ga. 579, 30 S.E. 821 (1898) (decided under former Civil Code 1895, § 2518). Nearest relative has absolute right to appointment if unobjectionable. See Kelley v. Kelley, 129 Ga. App. 257, 199 S.E.2d 399 (1973) (decided under former

Code 1933, § 49-107); Abrams v. Daffron, 155 Ga. App. 182, 270 S.E.2d 278 (1980) (decided under former Code 1933, § 49-107);. Meaning of word ‘‘objectionable’’. - The word ‘‘objectionable’’ in former Code 1933, § 49-107 referred not to moral qualities exclusively but to any position or course of dealing which led to the conclusion that the interest of a person selected was adverse to that of the estate. Kelley v. Kelley, 129 Ga. App. 257, 199 S.E.2d 399 (1973) (decided under former Code 1933, § 49-107). A court has wide discretion in determining whether an applicant was entitled to the absolute preference set forth in former O.C.G.A. § 29-4-8, and it was apparent that ‘‘objectionability’’ in a guardianship dispute was not the same as ‘‘parental unfitness,’’ which must generally be shown before a court can interfere with a parent’s right to custody over a child. An inquiry into a guardianship applicant’s ‘‘unobjectionability’’ may broadly consider the applicant’s suitability, habits, responsibility, sense, and morality, as well as the financial interests of the child. A person may be ‘‘objectionable,’’ and not entitled to guardianship as a matter of right, even though the objections would not authorize interfering with the person’s right to custody of the person’s own child. Huval v. Jacobs, 248 Ga. App. 696, 548 S.E.2d 437 (2001) (decided under former O.C.G.A. § 29-4-8). Grandparent named as testamentary guardian should prevail. - Where both parents of an infant child are deceased, the father having survived the mother and by will having provided that his mother should be testamentary guardian of the person of such child, and where in a contest between the paternal and the maternal grandmothers of the child it appears that both are fit and proper persons to have custody of the child, the testamentary guardian is entitled to the custody. Shanks v. Ross, 173 Ga. 55, 159 S.E. 700 (1931) (decided under Ga. L. 1922, p. 46, § 1). Child’s grandmother was not entitled to the absolute preference provided for in the statute, and custody of the child was properly awarded to the child’s

aunt and uncle since: (1) the trial court noted that the grandmother had not exhibited good parenting skills in regard to her own children and had led an inappropriate life style in the presence of minors in the past; (2) the court noted that she divorced the children’s father when they were young and then had two long term live in relationships while the minor children lived in her house; (3) one of the children went to live with her father for a year when she was 13 because of difficulties in her relationship with her mother and subsequently left home before finishing high school; and (4) the court found that the grandmother had time and again made poor moral decisions and that educational success had not been a priority for her or her children. Huval v. Jacobs, 248 Ga. App. 696, 548 S.E.2d 437 (2001) (decided under former O.C.G.A. § 29-4-8). Preference of remaindermen is immaterial. - Under the provisions of former Civil Code 1895, § 2518 (former O.C.G.A. § 29-4-8), the ward’s nearest of kin by blood, if unobjectionable, was, in such a contest, entitled to the appointment; and the preference of remaindermen, to whom the ward’s estate may eventually belong was not, in legal contemplation, material. Armor v. Moore, 104 Ga. 579, 30 S.E. 821 (1898) (decided under former Civil Code 1895, § 2518). See also Johnson v. Kelly, 44 Ga. 485 (1871); Chalker v. Thornton, 31 Ga. App. 791, 122 S.E. 244 (1924). Sureties on bond of clerk not liable for clerk’s default. - Sureties upon official bond of clerk of superior court are not liable thereon for sureties’ default as guardian appointed by the ordinary (now judge of probate court) under provisions of former Civil Code 1910, § 3039 (former O.C.G.A. § 29-4-11). Hardwick v. Fidelity & Deposit Co., 29 Ga. App. 567, 116 S.E. 220, cert. denied, 29 Ga. App. 799, 116 S.E. 648 (1923) (decided under former Civil Code 1910, § 3039). Attorney’s fees. - Because the attorney failed to present any evidence of the value of the lawyer’s services at a probate hearing, the trial court was left to determine that value based on its own experience and, since the lawyer failed to prove that the contingency agreement with the

beneficiaries of an estate provided for a reasonable fee, the trial court was authorized to determine that $15,000 was a reasonable fee. Rowen v. Estate of Hughley, 272 Ga. App. 55, 611 S.E.2d 735 (2005). Purported settlement agreement involving the ward not enforceable. - Trial court did not err in denying a driver’s motions to enforce a settlement with the driver’s injured passenger, and dismiss the passenger’s action, as: (1) the

attorney, who purported to agree to the settlement of the passenger’s claim, lacked the authority to do so; and (2) the undisputed evidence revealed that at the time of the purported settlement no guardian had been appointed for the passenger. Anaya v. Coello, 279 Ga. App. 578, 632 S.E.2d 425 (2006). Cited in Price v. Matthews, 68 Ga. App. 510, 23 S.E.2d 535 (1942); Gwinnett County v. Old Peachtree Partners, LLC, 329 Ga. App. 540, 764 S.E.2d 193 (2014).

RESEARCH REFERENCES Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 40 et seq. Am. Jur. Pleading and Practice Forms. - 7 Am. Jur. Pleading and Practice Forms, Compromise and Settlement, § 39 et seq. C.J.S. - 39 C.J.S., Guardian and Ward, § 24 et seq.

ALR. - Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594. Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.