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Georgia State Code
Title      29
Chapter       5  
Section Navigation        1 ... 9          10 ... 13      
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Title 29, Chapter 5, Section 8 (29-5-8)

(a) In the event that the petitioner alleges that the proposed ward is gravely incapacitated and that an emergency guardian is necessary, such a guardian may be appointed for the person or property, or both, of the ward in accordance with this Code section. In addition to any other procedures, including but not limited to Code Section 29-5-6, if the petitioner also alleges in the emergency petition or amendment thereto that a guardianship of limited or permanent duration will be required following the termination of any emergency guardianship for the proposed ward, such a guardianship of limited or permanent duration may be ordered pursuant to this Code section for the person or property or both of a ward for whom an emergency guardian has been appointed.

(b) In addition to the requirements of subsection (a) of Code Section 29-5-6, the petition shall set forth:

(1) Such facts as establish an immediate, clear, and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed; or

(2) Such facts as establish an immediate, substantial risk of irreparable waste or dissipation of the estate of the proposed ward unless an emergency guardian is appointed.

(c) The petition shall be supported by the oath of at least two petitioners or by the affidavit of a physician or psychologist as required in subsection (a) of Code Section 29-5-6. All such affidavits, in addition to setting out from personal knowledge the facts establishing the incapacity of the proposed ward, shall specify such facts as are required by subsection (b) of this Code section to show an emergency situation and shall specify such facts as required for the appointment of a guardian under Code Section 29-5-6 to show any petitioned for guardianship of limited or permanent duration will be necessary following the termination of the emergency guardianship.

(c.1) In its review of the petition as set out in subsection (b) of Code Section 29-5-6, if the court finds a lack of probable cause to believe the proposed ward is gravely incapacitated or a lack of probable cause to believe that an emergency guardianship is necessary for the reasons indicated in this Code section, the probate court shall dismiss the petition, including but not limited to, any request for a guardianship of limited or permanent duration contained in the petition for emergency guardianship.

(d) In its review of the petition as set out in subsection (b) of Code Section 29-5-6, if the court finds that there is probable cause to believe that the proposed ward is gravely incapacitated and that an emergency guardianship is necessary for the reasons indicated in this Code section, the court:

(1) Shall order an examination of the proposed ward to be made by a physician licensed to practice medicine under Chapter 34 of Title 43 or by a psychologist licensed to practice under Chapter 39 of Title 43, to be conducted within 72 hours and a written report to be furnished to the court and made available to the parties within such time; the examination and report shall be governed by the provisions of paragraphs (3) and (6) of subsection (c) of Code Section 29-5-6;

(2) Shall order an emergency hearing to be conducted not sooner than three days nor later than five days after the filing of the petition;

(3) Shall immediately appoint counsel to represent the proposed ward at the emergency hearing and at any hearing regarding a guardianship of limited or permanent duration to follow the termination of an emergency guardianship and shall inform counsel of the appointment;

(4) If the threatened risk is so immediate and irreparable that any delay is unreasonable and the existence of such a threatened risk is certified by the affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43 or of a psychologist licensed to practice under Chapter 39 of Title 43, shall appoint an emergency guardian to serve until the emergency hearing;

(5) In its discretion, may order that, pending the emergency hearing, no withdrawals may be made from any account on the authority of the proposed ward's signature without prior approval from the court, if there is a substantial risk of dissipation of any bank or savings and loan account in which the proposed ward has an interest and if the risk is so immediate and the potential harm so irreparable that any further delay would be unreasonable; and

(6) Shall order immediate personal service of the petition, notice of the emergency hearing and the appointment of counsel, and any emergency order upon the proposed ward by an officer of the court.

(e) After receiving the examination report and at the time indicated in its earlier order, the probate court shall conduct the emergency hearing to determine whether:

(1)(A) The conditions indicated in subsection (a) of this Code section exist so as to necessitate the appointment or continuation of the appointment of an emergency guardian; and

(B) Only if such conditions necessitate the appointment or continuation of the appointment of an emergency guardian, it appears that any petitioned for guardianship of limited or permanent duration following termination of the emergency guardianship will be required; or

(2) Any existing guardianship should be discontinued pending evaluation and the full hearing indicated in subsection (e) of Code Section 29-5-6.

The burden of proof shall be upon the petitioner and the standard used by the court in reaching its decision shall be clear and convincing evidence.

(f) Any emergency guardian appointed under this chapter shall have only those powers and duties specifically enumerated in the order of the probate court; and such powers and duties shall not exceed those absolutely necessary to respond to the immediate, threatened risk to the ward enumerated in the petition pursuant to this Code section. All emergency guardianships shall terminate immediately upon whichever of the following events occurs first:

(1) The conclusion of the full hearing indicated in subsection (e) of Code Section 29-5-6;

(2) The date the portion of an order establishing a guardianship of limited or permanent duration becomes effective under division (g)(2)(B)(iii) of this Code section;

(3) Forty-five days after the filing of the petition, unless a hearing is requested under division (g)(2)(B)(iv) of this Code section, in which event the time shall be 55 days after the filing of the petition; or

(4) The date specified for such termination in the order appointing the emergency guardian.

(g)(1) When the court at the emergency hearing does not find clear and convincing evidence that the proposed ward is gravely incapacitated so as to require an emergency guardianship under the standards therefor indicated in this Code section, the probate court shall dismiss the petition, including but not limited to, any request for a guardianship of limited or permanent duration.

(2) When the court at the emergency hearing finds clear and convincing evidence that the proposed ward is gravely incapacitated so as to require an emergency guardianship under the standards therefor indicated in this Code section and:

(A) The petition did not request or the court did not find clear and convincing evidence for a guardianship of limited or permanent duration following the termination of the emergency guardianship, the court shall order the emergency guardianship but shall order any portion of the petition requesting such guardianship of limited or permanent duration to be denied; or

(B)(i) The court finds clear and convincing evidence for a petition for guardianship of limited or permanent duration following the termination of the emergency guardianship, the court shall order the establishment of both an emergency guardianship and a guardianship of limited or permanent duration. That portion of such order which appoints the emergency guardian shall become effective immediately. That portion of such order which establishes a guardianship of limited or permanent duration shall conform to paragraph (1) of subsection (f) of Code Section 29-5-6 but shall not become effective except as provided in this paragraph.

(ii) The order pursuant to division (i) of this subparagraph shall be personally served by an officer of the court upon the ward, and shall be communicated orally in person or communicated by first-class mail to the counsel appointed to represent the ward at the emergency hearing, each petitioner or attorney therefor, and those persons required to be notified of court determinations pursuant to subparagraph (b)(2)(C) of Code Section 29-5-6 or those persons' attorneys. Any person so notified shall have the right, and the order shall so state, to file with the court written demand for a hearing regarding the proposed guardianship of limited or permanent duration if such demand is filed within 30 days following the date the order is served, communicated orally, or sent by first-class mail, as applicable, to that person.

(iii) If no timely demand for a hearing is filed as authorized in division (ii) of this subparagraph, that portion of the order establishing the guardianship of limited or permanent duration shall become effective upon the expiration of the time for demanding a hearing on the issue and the emergency guardianship shall then terminate.

(iv) If a timely demand for a hearing is filed, as authorized under division (ii) of this subparagraph, the court shall schedule a hearing on those parts of the petition and order calling for or establishing a guardianship of limited or permanent duration, and those parts of such petition and order shall then be of no further effect. No evaluation other than the examination already conducted for the appointment of an emergency guardian shall be required for the hearing held pursuant to this paragraph, unless an additional evaluation is requested by the person demanding the hearing or is ordered by the court. If such evaluation is requested by the ward, the ward's attorney, or the petitioner, the expenses shall be cast pursuant to Code Section 29-5-13; otherwise, the expenses of said evaluation shall be cast as determined by the court. A copy of the emergency examination report and notice of the hearing shall be served, the date of the hearing shall be set, and the opportunity to respond to the report shall all be as provided in paragraph (1) of subsection (d) of Code Section 29-5-6, except that such service shall be made upon those persons served with the order under division (ii) of this subparagraph. The hearing and rights and procedures related thereto shall be as provided in subsection (e) of Code Section 29-5-6, except that the emergency examination report shall be deemed to be the evaluation report unless the court orders an evaluation report. At such hearing the court may order a guardianship of limited or permanent duration if the court finds clear and convincing evidence that the proposed ward meets the standards established therefor by Code Section 29-5-1 and the rights and procedures relating thereto conform to subsection (f) of Code Section 29-5-6. The powers of a guardian appointed to such guardianship shall be the same as if the guardianship were established pursuant to Code Section 29-5-6.

Saturday May 23 17:12 EDT


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