Guardianship Laws

Adult Guardianship Statute: 

Ga. Code Ann. §§ 29-1-1; 29-4-1 to -10-11

Right to Counsel in Statute: Initial Guardianship Proceedings: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Right to Counsel Statututory Citation: 

Ga. Code Ann. §§ 29-4-11(c)(1)(D), -20(a)(5), -41(a), -42(a), -61(b) (2009)

Right to Counsel Definition in Statute: 

"The court shall immediately notify the proposed ward of the proceedings by service of all pleadings on the proposed ward, which notice shall . . . Inform the proposed ward of the proposed ward's right to independent legal counsel and that the court shall appoint counsel within two days or service unless the proposed ward indicates that he or she has retained counsel in that time frame." Ga. Code Ann. § 29-4-11(c)(1)(D). "In a guardianship, the ward has the right to . . . individually or through the ward's representative or legal counsel, bring an action relating to the guardianship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by this chapter and Chapter 5 of this title and including the right to bring an action to modify or termiante the guardianship pursuant to the provisions of Code Sections 29-4-41 and 29-4-42." Ga. Code Ann. § 29-4-20(a)(5). "...In any proceeding under this Code section that would expand or increase the powers of the gauardian or further restrict the rights of the ward, the court shall appoint legal counsel for the ward. In all other cases, the court, in its discretion, may appoint legal counsel for the ward or a guardian ad litem, or both."Ga. Code Ann. § 29-4-41(a). "The Court shall appoint legal counsel for the ward [in guardianship termination proceedings] and may, in its discretion, appoint a guardian ad litem." Ga. Code Ann. § 29-4-42(a). "The court shall appoint legal counsel for the ward [in successor guardianship proceedings]." Ga. Code Ann. § 29-4-61(b).

Advocacy Role of Counsel Defined in Statute: 
Not stated
Professional Rules &/or Ethics Opinions: 

GCPR Rule 1.14: "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client- lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client' sown interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian."

Other Case Law: 

Chesser v. Chesser, 284 Ga. App. 381 (Ga. App., 2007): "When two or more persons swear out a petition for the appointment of a guardian, the judge of the probate court shall review the petition and determine whether there is sufficient evidence to believe that the proposed ward is incapacitated within the meaning of [OCGA § 29-5-1]. If the probate court determines on the basis of the petition that there is sufficient evidence to justify a psychological evaluation, the court must then appoint a psychologist or psychiatrist for that purpose."

Other Important Info: 

Ga. Code Ann. § 9-11-17: "Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person."

Discuss Guardianship or Supported Decision-Making?: