§ 29-5-11 - Prerequisite finding prior to appointment of conservator; notice; evaluation; written report - Georgia Statutes

O.C.G.A. 29-5-11 (2010)
29-5-11. Prerequisite finding prior to appointment of conservator; notice; evaluation; written report

(a) Upon the filing of a petition for conservatorship of the estate of a proposed ward, the court shall review the petition and the affidavit, if any, and determine whether there is probable cause to believe that the proposed ward is in need of a conservator within the meaning of Code Section 29-5-1.

(b) If the court determines that there is no probable cause to believe that the proposed ward is in need of a conservator, the court shall dismiss the petition and provide the proposed ward with a copy of the petition, the affidavit, if any, and the order dismissing the petition.

(c) If the court determines that there is probable cause to believe that the proposed ward is in need of a conservator:

(1) The court shall immediately notify the proposed ward of the proceedings by service of all pleadings on the proposed ward, which notice shall:

(A) Be served personally on the proposed ward by an officer of the court and shall not be served by mail;

(B) Inform the proposed ward that a petition has been filed to have a conservator appointed for the proposed ward, that the proposed ward has the right to attend any hearing that is held, and that if a conservator is appointed the proposed ward may lose important rights to control the management of the proposed ward's property;

(C) Inform the proposed ward of the place and time at which the proposed ward shall submit to the evaluation provided for by subsection (d) of this Code section; and

(D) Inform the proposed ward of the proposed ward's right to independent legal counsel and that the court shall appoint counsel within two days of service unless the proposed ward indicates that he or she has retained counsel within that time frame;

(2) Upon notice that the proposed ward has retained legal counsel or upon the appointment of legal counsel by the court, the court shall furnish legal counsel with a copy of the petition, the affidavit, if any, and the order for evaluation provided for by subsection (d) of this Code section.

(3) The court shall give notice of the petition by first-class mail to all adult individuals and other persons who are named in the petition pursuant to the requirements of paragraphs (8) through (10) of subsection (b) of Code Section 29-5-10; and

(4) Upon the court's own motion or upon the motion of any interested person, the court shall determine whether to appoint a guardian ad litem.
(d)(1) If the petition is not dismissed pursuant to subsection (b) of this Code section, the court shall appoint an evaluating physician who shall be 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 or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker authorized to practice in that federal facility other than the physician, psychologist, or licensed clinical social worker who completed the affidavit attached to the petition pursuant to subsection (c) of Code Section 29-5-10.

(2) When evaluating the proposed ward, the physician, psychologist, or licensed clinical social worker shall explain the purpose of the evaluation to the proposed ward. The proposed ward may remain silent. Any statements made by the proposed ward during the evaluation shall be privileged and shall be inadmissable as evidence in any proceeding other than a proceeding under this chapter. The proposed ward's legal counsel shall have the right to be present but shall not participate in the evaluation.

(3) The evaluation shall be conducted with as little interference with the proposed ward's activities as possible. The evaluation shall take place at the place and time set in the notice to the proposed ward and to his or her legal counsel and the time set shall not be sooner than the fifth day after the service of notice on the proposed ward. The court, however, shall have the exclusive power to change the place and time of the examination at any time upon reasonable notice being given to the proposed ward and to his or her legal counsel. If the proposed ward fails to appear, the court may order that the proposed ward be taken directly to and from a medical facility, office of a physician, psychologist, or licensed clinical social worker for purposes of evaluation only. The evaluation shall be conducted during the normal business hours of the facility or office and the proposed ward shall not be detained in the facility or office overnight. The evaluation may include, but not be limited to:

(A) A self-report from the proposed ward, if possible;

(B) Questions and observations of the proposed ward to assess the functional abilities of the proposed ward;

(C) A review of the records for the proposed ward including, but not limited to, medical records, medication charts, and other available records;

(D) An assessment of cultural factors and language barriers that may impact the proposed ward's abilities and living environment; and

(E) All other factors the evaluator determines to be appropriate to the evaluation.

(4) A written report shall be filed with the court no later than seven days after the evaluation and the court shall serve a copy of the report by first-class mail upon the proposed ward and the proposed ward's legal counsel and guardian ad litem, if appointed.

(5) The report shall be signed under oath by the physician, psychologist, or licensed clinical social worker and shall:

(A) State the circumstances and duration of the evaluation, including a summary of questions or tests utilized, and the elements of the evaluation;

(B) List all persons and other sources of information consulted in evaluating the proposed ward;

(C) Describe the proposed ward's mental and physical state and condition, including all observed facts considered by the physician, psychologist, or licensed clinical social worker;

(D) Describe the overall social condition of the proposed ward, including support, care, education, and well-being; and

(E) Describe the needs of the proposed ward and their foreseeable duration.

(6) The proposed ward's legal counsel may file a written response to the evaluation, provided the response is filed no later than the date of the commencement of the hearing on the petition for conservatorship. The response may include, but is not limited to, independent evaluations, affidavits of individuals with personal knowledge of the proposed ward, and a statement of applicable law.