O.C.G.A. § 29-5-93 (2019)
Cause of action for breach of fiduciary duty
(a) If a conservator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a ward or an interested person on behalf of the ward shall have a cause of action as appropriate: (1) To recover damages; (2) To compel performance of the conservator’s duties; (3) To enjoin the commission of a breach of fiduciary duty; or (4) To compel the redress of a breach of fiduciary duty by payment of money or otherwise.
(b) When the ward’s assets are misapplied and can be traced into the hands of persons who have notice of the misapplication, a trust shall attach to the assets.
(c) The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.
History
(Code 1981, § 29-5-93, enacted by Ga. L. 2004, p. 161, § 1.)
Annotations
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3051, former Code 1933, § 49-232, and former O.C.G.A. § 29-2-45 are included in the annotations for this Code section. Religious belief of guardian does not render guardian unfit to discharge guardianship. Maxey v. Bell, 41 Ga. 183 (1870) (decided under former Civil Code 1910, § 3051). Suit against guardian for waste permitted if regarding revocation of guardianship. - Suit by next friend in behalf of ward for waste committed by guardian, or recovery of money in guardian’s hands, can be brought only in connection with a proceeding to remove guardian and revoke guardian’s letters. Dillon v. Sills, 54 Ga. App. 299, 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232). Proceedings are against guardian as an individual, not against estate. - Proceedings to remove guardian and revoke guardian’s letters, under former Code 1933, §§ 49-232, 49-115 or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14, or 29-4-15), were proceedings against guardian as an individual, and not against the estate or trust guardian represents; and where guardian was removed as guardian and guardian’s letters revoked, it was proper that guardian appeal therefrom as an individual. Bruce v. Dunn, 52 Ga. App. 758, 184 S.E. 361 (1936) (decided under former Code 1933, § 49-232). On question of removal, interest of ward governs, rather than that of guardian. Morse v. Caldwell, 55 Ga. App. 804, 191 S.E. 479 (1937) (decided under former Code 1933, § 49-232). Burden of proof rests upon party attacking guardian’s conduct. Dillon v. Sills, 54 Ga. App. 299, 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232). Guardian who has been removed may appeal to superior court. - Where guardian was removed and guardian’s letters revoked, upon rule issued by the ordinary (now judge of probate court), under former Code 1933, §§ 49-232,
49-115 or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14, or 29-4-15), after hearing on guardian’s answer to such rule, guardian may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758, 184 S.E. 361 (1936) (decided under former Code 1933, § 49-232). Revocation of letters of guardianship. - Where court of ordinary (now probate court) rendered decision revoking letters of guardianship, an appeal will lie from such decision to superior court, though no issue of fact be involved. Teasley v. Vickery, 133 Ga. 721, 66 S.E. 918 (1910) (decided under former Civil Code 1910, § 3051). For jurisdiction over removal proceedings where guardian and ward have moved from county of original appointment, see Fouts v. Flythe, 54 Ga. App. 108, 187 S.E. 160 (1936) (decided under former Code 1933, § 49-232). Guardian’s failure to file annual returns was evidence that the guardian’s fiduciary duties were breached and such evidence supported removal. Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998) (decided under former O.C.G.A. § 29-2-45). Action for breach of fiduciary duty litigated by implied consent although not raised in the pleadings. - 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). Conservator’s liability for punitive damages. - 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. Estate of Gladstone, No. S17G1472, 2018 Ga. LEXIS 292 (May 5, 2018). Cited in Jennings v. Longino, 49 Ga.
App. 494, 176 S.E. 94 (1934); Mitchell v. Mitchell, 201 Ga. 621, 40 S.E.2d 738 (1946).
OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-232 are included in the annotations for this Code section. Use of estate funds should accompany petition to revoke guardianship. - One who has been adjudged insane and confined to state mental hospital
and who desires to use funds in estate for purpose of proving that sanity has been restored, should properly proceed by making application to ordinary (now judge of probate court) for revocation of letters of guardianship. 1952-53 Op. Att’y Gen. p. 373 (decided under former Code 1933, § 49-232).
RESEARCH REFERENCES Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 162 et seq. C.J.S. - 39 C.J.S., Guardian and Ward, §§ 4, 78, 80, 81, 255, 256. ALR. - Liability of guardian, or his surety, as affected by agreement by which
he limits his control over funds or investments, 102 A.L.R. 1108. Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535.