O.C.G.A.
O.C.G.A.

O.C.G.A. § 29-4-42 (2019)

Termination of guardianship; required evidence; burden of proof; return of property

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) Upon the petition of any interested person, including the ward, or upon the court’s own motion, and upon a proper showing that the need for a guardianship is ended, the court may terminate the guardianship and restore all personal and property rights to the ward. Except for good cause shown, the court shall order that notice of the petition be given, in whatever form the court deems appropriate, to the ward, the guardian, the ward’s legal counsel, if any, and the ward’s conservator, if any. The court shall appoint legal counsel for the ward and may, in its discretion, appoint a guardian ad litem.

(b) A petition for termination must be supported either by the affidavits of two persons who have knowledge of the ward, one of whom may be the petitioner, or of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker, setting forth the supporting facts and determinations. If, after reviewing the petition and the affidavits, the court determines that there is no probable cause to believe that the guardianship should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall order that an evaluation be conducted, in accordance with the provi620 sions of subsection (d) of Code Section 29-4-11. If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that the guardianship should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing, with such notice as the court deems appropriate.

(c) In any proceeding under this Code section, the burden is on the petitioner to show by a preponderance of the evidence that there is no longer a need for the guardianship.

(d) No petition for termination of a guardianship shall be allowed by the court within two years after the denial or dismissal on the merits of a petition for termination of the guardianship unless the petitioner shows a significant change in the condition or circumstances of the ward.

(e) The death of the ward automatically terminates the guardianship, except as otherwise provided in Code Section 29-4-43.

(f ) Upon termination of the guardianship, the guardian shall deliver any money or property to the ward or, if a conservator has been appointed for the ward, to that conservator or, if the ward is deceased, to the ward’s personal representative.

History

(Code 1981, § 29-4-42, enacted by Ga. L. 2004, p. 161, § 1.)

Annotations

JUDICIAL DECISIONS Probable cause hearing. - Probate court should have conducted a probable cause hearing on the petition to terminate guardianship pursuant to O.C.G.A. §§ 29-4-42(b) and 29-5-72(b) as there was

conflicting evidence regarding the ward’s capacity to make or communicate decisions by a psychologist and a social worker. In re Loftus, 331 Ga. App. 329, 771 S.E.2d 38 (2015).

RESEARCH REFERENCES C.J.S. - 57 C.J.S., Mental Health, § 180 et seq. ALR. - Jurisdiction of court after ad-

judication of restoration to competency, as regards claims against former incompetent, 128 A.L.R. 1386.

Notes of Decisions
Cited in 3 cases (1 in the last 5 years), 2015–2022 · leading case: In re Loftus, 771 S.E.2d 38 (Ga. Ct. App. 2015).
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In re Loftus, 771 S.E.2d 38 (Ga. Ct. App. 2015). · cites it 8× “The record, however, reflects probable cause such that the probate court should have conducted a hearing on the petition pursuant to OCGA §§ 29-4-42 (b) and 29-5-72 (b). Accordingly, we reverse the dismissal of the petition and remand the case for further proceedings.”
In Re: Catherine Mary Loftus A/K/A Catherine Mary Serewicz (Ga. Ct. App. 2015). · cites it 7× “The record, however, reflects probable cause such that the probate court should have conducted a hearing on the petition pursuant to OCGA §§ 29-4-42 (b) and 29-5-72 (b). Accordingly, we reverse the dismissal of the petition and remand the case for further proceedings.”
In Re Marianne Carlisle Thomasson (Ga. Ct. App. 2022). · cites it 2× “See OCGA § 29-4-42 (e) (The death of the ward automatically terminates the guardianship of an incapacitated person for all purposes except the final accounting of the guardian of the property); OCGA § 29-5-72 (e) (“The death of the ward automatically terminates the…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.