Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Civil Code 1910, §§ 3033, 3046, former Code 1933, §§ 49-112 and 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

For purpose of notice, see New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided prior to amendment of former Civil Code 1810, § 3046 by Ga. L. 1958, p. 673, § 2, which changed notice requirement).

Citation unnecessary to appoint mother as guardian of daughter's property.

- In order for a mother, the natural guardian, to also be appointed guardian of her daughter's property, citation is unnecessary. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Citation necessary for appointment for one not child of applicant.

- Where application is for appointment of guardian of a minor child under 14 years of age, other than child of applicant, it is necessary for citation to issue. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Second citation unnecessary.

- It is not necessary to issue a second citation when the first citation of application for letters of administration is for the appointment of one person even though the court issues letters of administration to an entirely different person, as to whose appointment no previous notice had been given to any one. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

No citation is necessary for appointment of testamentary guardian and a testamentary guardian might be authorized by probate court to take charge of property coming to the guardian's ward from sources other than parent's will, without necessity of citation. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Further notice unnecessary for testamentary guardian over property from other sources.

- When an applicant has already, by will, been made testamentary guardian, it is a matter of testamentary disposition, and there would seem to be no necessity for further notice. Moreover, the law raises implication that there could be no better selection for guardianship of property of minors coming from outside sources than that already provided by the father in his own will as to their persons and property devised by the will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

Requiring notice is to protect public and alleged incompetent.

- The object of former Code 1933, § 49-604 in requiring notice to relatives was not to confer any right upon them, but was solely for the purpose of protecting public and interest of alleged incompetent. Phillips v. Phillips, 202 Ga. 776, 44 S.E.2d 767 (1947) (decided under former Code 1933, § 49-604).

Relations notified are not parties in their own behalf but are notified for benefit of person to be considered and given an opportunity to be heard in that person's behalf. They are not summoned by process; no judgment can be rendered against them merely because of such notice; and there is no provision for taxing costs against them. Slaughter v. Heath, 127 Ga. 747, 57 S.E. 69, 27 L.R.A. (n.s.) 1 (1907) (decided under former Code 1895, § 2573).

Proceedings in probate court only governed by recording requirement in former O.C.G.A. § 29-5-6(e)(2) and on de novo appeal from probate court decision on guardianship petition, superior court may, but was not required to, have the hearing reported. Snider v. Lavender, 164 Ga. App. 591, 298 S.E.2d 582 (1982) (decided under former O.C.G.A. § 29-5-6).

Names and addresses of adult children of ward.

- Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386, 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Stepchildren are not included in "children. "

- A ward's stepchildren are not children under the guardianship statute, nor are they next of kin, and because there were individuals in this case related to the ward by blood, who were not notified of the guardianship proceedings, the appointment of the guardian was void. Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990) (decided under former O.C.G.A. § 29-5-6).

Guardian appointment for person of nonresident insane person within county.

- Probate courts of this state have jurisdiction to appoint a guardian for person of nonresident insane person if nonresident is found within limits of county of probate court's jurisdiction. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Probate court of Cobb County did not lack jurisdiction over proceedings involving ward who was a Stephens County resident but had been transferred to a convalescent center in Cobb County, where it was uncontroverted that no plea to the court's jurisdiction was filed and that ward was at the time of the proceeding "found" in Cobb County. Smith v. Young, 187 Ga. App. 191, 369 S.E.2d 798 (1988) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding.

- Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532, 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Grandson did not have the right to intervene in proceedings by children for the appointment of a guardian for their mother. White v. Heard, 225 Ga. App. 351, 484 S.E.2d 12 (1997) (decided under former O.C.G.A. § 29-5-6).

Motion to intervene not required.

- It was not error for the probate court to permit the Department of Human Resources to intervene in guardianship proceedings without requiring it to file a motion to intervene. In re Martin, 218 Ga. App. 79, 460 S.E.2d 304 (1995) (decided under former O.C.G.A. § 29-5-6).

Mental incompetent is entitled to hearing in county of residence.

- Where person files application for appointment of guardian of allegedly mentally incompetent state resident, the latter is entitled to have application for guardianship heard in probate court of county of his or her residence. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Where representative of alleged incompetent files plea to court's jurisdiction on ground that alleged incompetent is resident of another county, the plea should be sustained if it is determined that alleged incompetent is, in fact and in law, a resident of the other county. Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Requirements for petition at trial.

- Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695, 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

Mental capacity to petition for appointment of guardian.

- A person receiving social security disability benefits based on a mental disability, who had not been adjudicated to be incapacitated, was not disqualified to petition for appointment of a guardian for mother. Johnson v. Jones, 214 Ga. App. 386, 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Court where alleged insane person lives may have jurisdiction.

- The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited.

- For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199, 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737, 164 S.E.2d 836 (1968); Boockholdt v. Brown, 224 Ga. 737, 164 S.E.2d 836 (1968)(decided under former Code 1933, § 49-604) (decided under former Code 1933, § 49-604); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119, aff'd, 221 Ga. 486, 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Notice to nearest relatives of alleged mental incompetent is insufficient. Edwards v. Lampkin, 221 Ga. 486, 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

When notice is insufficient, all proceedings under section are void.

- When court of ordinary was without jurisdiction due to insufficiency of notice, all subsequent proceedings in cause brought under former Code 1933, § 49-604, including appointment of guardian, were void. Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119, aff'd, 221 Ga. 486, 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

Failure to have hearing recorded impacts appeal.

- Absent a record of the hearing, the appellate could not determine whether the probate court's finding that appellant was incapable of managing appellant's estate was supported by clear and convincing evidence; accordingly, because the probate court failed to have the hearing recorded or reported, appellant was effectively denied appellant's right to appeal the probate court's decision. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

Standing to appeal from grant of petition.

- Where the probate court granted wife's petition for guardianship over her husband, the superior court correctly dismissed an appeal by the adult children of the husband because they did not file a petition for guardianship under former O.C.G.A. § 29-5-6 and did not hold any other status under former O.C.G.A. § 29-5-11(a). Twitty v. Akers, 218 Ga. App. 467, 462 S.E.2d 418 (1995) (decided under former O.C.G.A. § 29-5-6).

Cited in Jones v. Jones, 191 Ga. App. 401, 381 S.E.2d 565 (1989); Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837 (1942); Price v. Matthews, 68 Ga. App. 510, 23 S.E.2d 535 (1942); Henderson v. Hale, 209 Ga. 307, 71 S.E.2d 622 (1952); In re Vincent, 240 Ga. App. 876, 525 S.E.2d 409 (1999).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident.

- A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91, Georgia's Long Arm Statute; and (3) the criteria and procedures of former O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated.

- Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement.

- The requirement of former O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 64, 65, 66.

7 Am. Jur. Pleading and Practice Forms, Compromise and Settlement, § 39 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 9, 17 et seq., 265 et seq. 56 C.J.S., Mental Health, § 22 et seq. 57 C.J.S.*, Mental Health, § 124 et seq.

ALR.

- Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565.

Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594.

May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227; 175 A.L.R. 1324.

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338.

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541.

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364.

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247.

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.