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

O.C.G.A. § 29-5-3 (2019)

Order of preference in selecting conservator; nomination of individual to serve as conservator; requirements of nomination

✓ 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.
Find cases: SyfertCases citing this section GA-LEGlegis.ga.gov (official) JustiaJustia CornellLII Search CasesGoogle Scholar

(a) The court shall appoint as conservator that person who shall best serve the interest of the adult taking into consideration the order of preferences set forth in this Code section. The court may disregard a person who has preference and appoint a person who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.

(b) Persons who are eligible and not disqualified have preference in the following order:

(1) The person last nominated by the adult in accordance with the provisions of subsection (c) of this Code section;

(2) The spouse of the adult or a person nominated by the adult’s spouse in accordance with the provisions of subsection (d) of this Code section;

(3) An adult child of the adult or a person nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section;

(4) A parent of the adult or a person nominated by a parent of the adult in accordance with the provisions of subsection (c) of this Code section;

(5) A conservator appointed during the minority of the adult;

(6) A conservator previously appointed in Georgia or another state;

(7) A friend, relative, or any other person; or

(8) The county guardian.

(c) At any time prior to the appointment of a conservator, an adult may nominate in writing a person to serve as that adult’s conservator should the adult be judicially determined to be in need of a conservator, and that nomination shall be given the preference set forth in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or the provisions of Code Section

(d) At any time prior to the appointment of a conservator, a spouse, adult child, or parent of an adult may nominate in writing a person to serve as the adult’s conservator should the adult be judicially determined to be in need of a conservator, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or, if in a will, is executed in accordance with the provisions of Code Section 53-4-20.

(e) A writing nominating the conservator of an adult:

(1) Must contain an express nomination of the person who shall serve as conservator and must be signed or acknowledged by the individual making the nomination in the presence of two witnesses who sign in the individual’s presence; and

(2) May be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.

History

(Code 1981, § 29-5-3, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 12/SB 534; Ga. L. 2011, p. 752, § 29/HB 142.)

Annotations

Editor’s notes. - Former Code Section 31-36-5, referred to in subsection (c) of this Code section, was repealed by Ga. L. 2007, p. 133, § 3, effective July 1, 2007.

Law reviews. - For article, ‘‘Mar-

riage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia’s Same Sex Spouses,’’ see 21 Ga. St. Bar. J. 9 (Oct. 2015).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section. Failure to explain reason for selection of county guardian. - Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant’s next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant’s argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2(c) in naming a new guardian. In re Phillips, No. A02A2368, No. A02A2368, 2002 Ga. App. LEXIS 1311 (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2). Denial of appointment of guardian

held erroneous. - Because the probate court applied an incorrect analysis regarding the daughters’ request for guardianship in an action involving their mother, the request was improperly denied. Cruver v. Mitchell, 289 Ga. App. 145, 656 S.E.2d 269 (2008). Appointment of county conservator upheld. - Seeking to avoid the recovery of Medicaid payments from their mother’s estate, when the daughters opted their mother out of Medicaid and planned to sell some of the mother’s property, those decisions were properly held to not be in the mother’s best interest and supported the appointment of the county conservator in said capacity. Cruver v. Mitchell, 289 Ga. App. 145, 656 S.E.2d 269 (2008). Cited in Twitty v. Akers, 218 Ga. App. 467, 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998).

RESEARCH REFERENCES Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 40 et seq. Am. Jur. Pleading and Practice Forms. - 13 Am. Jur. Pleading and Prac-

tice Forms, Guardian and Ward, §§ 9 et seq., 42 et seq., 45, 63, 151, 450. C.J.S. - 57 C.J.S., Mental Health, § 135 et seq.

Notes of Decisions
Cited in 7 cases (1 in the last 5 years), 1996–2023 · leading case: Cruver v. Mitchell, 656 S.E.2d 269 (Ga. Ct. App. 2008).
Sort: Relevance Newest Treatment
Cruver v. Mitchell, 656 S.E.2d 269 (Ga. Ct. App. 2008). · cites it 6× “They contend, however, that as adult children of Mitchell, they should have been appointed conservators according to the statutory order of preference established by OCGA§ 29-5-3 (b). It is true that an individual’s adult children have preference over the county conservator in…”
Muse v. Treadaway, 561 S.E.2d 481 (Ga. Ct. App. 2002). · cites it 10× “In that motion, Muse asserted that she has standing under OCGA § 29-5-3 (b) (6) and that Garner’s action is subject to abatement as it was the same as her action.”
In Re Woodall, 499 S.E.2d 150 (Ga. Ct. App. 1998). · cites it 4× “However, in any legal proceeding wherein the interest of the ward could be adverse to that of the guardian, the guardian must petition the court for the appointment of a guardian ad litem.”
Thornton v. Carpenter, 476 S.E.2d 92 (Ga. Ct. App. 1996). · cites it 2× “See generally OCGA §§ 29-5-3 (a) and (b) (6); 29-5-8. The subsequent order appointing Wendell Thornton as permanent guardian expressly included the power “to receive, collect and take charge of the estate, both real and personal” of Ernie Thornton.”
Moore v. Self, 473 S.E.2d 507 (Ga. Ct. App. 1996). · cites it 2× “See OCGA §§ 29-5-3; 29-5-4. 4 In light of this conclusion, we need not address the issues raised in the Moore brothers’ second enumeration of error concerning whether Ms.”
In Re: Est. of Bette Dwoskin Kurtzman (Ga. Ct. App. 2023). · cites it 6× “An adult may nominate someone to serve as his or her guardian or conservator in advance of the appointment, and the nominated individual is first on the statutory and that nomination shall be given the preference described in this Code section, provided that it is signed in…”
In Re Est. of Jimmy Curtis, 793 S.E.2d 554 (Ga. Ct. App. 2016). · cites it 4× “In addition, we note that although under OCGA § 29-5-3 (b) (1) and (7), an individual nominated by an adult ward prior to the appointment of a conservator is given the highest ranking in the statutory order of preference for conservators, while a relative like Long is seventh on…”
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.