Guardianship Act
William J. Self, II, Judge, Probate Court of Bibb County
H. B. 917, which was passed by the General Assembly during the 2002 Session and has been signed by Governor Barnes, became law on July 1, 2002. It enacts a new Article (Article 2) under Chapter 4 of Title 29 to be known as the "Standby Guardianship Act."
The Act contemplates that a parent or legal guardian of a minor child may sign a document designating another person to serve as "standby guardian" for the minor in the event the parent or guardian is determined to be unable to care for the minor due to the parent's or guardian's physical or mental condition or health including a condition created by medical treatment. The Act contains a form for the standby guardian designation and requires that a designation contain substantially the information in the suggested form. Briefly stated, anyone may sign a Designation of Standby Guardian, and the simple signing of the designation does not involve the probate court.
If and when a physician or licensed nurse practitioner makes a written determination that the designating individual is unable to care for the minor, the standby guardianship "kicks in," and the standby guardian begins to act as guardian of the person of the minor. At that point in time (upon the health determination being made in writing and the guardian assuming the responsibility), the standby guardian is required to file with the probate court of the county of residence of the minor a "notice of the standby guardianship with a copy of the standby guardianship designation and the health determination attached." Except to file and record the Notice, the probate court takes no further action at that time with regard to the standby guardianship. The Act makes no provision for the Court to rule upon the sufficiency of the designation or the health determination or to entertain any contest to the filing of the Notice (even though the designation form in the statute states that a parent may "object" to the designation by another parent).
For up to four months, the standby guardian simply acts as guardian of the person of the minor without judicial intervention. Within four months of the date of the written health determination, the standby guardian is required to file with the probate court a petition seeking guardianship of the person of the minor, and the standby guardian shall have priority of appointment. Those proceedings would be governed by and under the use of already existing Georgia Probate Court Standard Forms and the laws applicable thereto. In most circumstances, the petition to be filed will be a temporary guardianship petition. The standby guardianship designation expires four months from the date of the written health determination unless a guardianship petition has been timely filed. The death of the designating individual prior to the entry of an order on the guardianship petition also terminates the standby guardianship. A standby guardian designation may be revoked at any time by the designating individual (presumably while capable of doing so), but the statute requires that the revocation be "communicated" to the standby guardian.
The Probate Court of Bibb County will keep both the statutory Designation form and an alternative form prepared by me on hand. The Georgia Council of Probate Court Judges does not anticipate creating a new official standard form for the Notice to be filed in these cases. However, a suggested standardized form is available in the Probate Court of Bibb County.
The Act makes no provision for the specific fees. Since the current probate court fee schedule makes no specific provision for such a Notice, the $10.00 fee under §15-9-60(k)(vii) will be the fee that we will charge. [This is the fee being recommended to all probate courts by the Council of Probate Court Judges.] Since the Notice must be docketed and recorded (to provide the "public notice" contemplated by the Act), this base fee will be added to the costs of recording ($2.00 per page for the Notice and the attachments required). The filing of the Notice would constitute a civil action or case, so the ADR and law library fees will be added to the costs collected.
The Notice is to be filed in the county of the minor's residence at the time of filing (which, presumably, would be the county of legal residence of the parent or legal guardian). The Act seems to contemplate that the petition for guardianship would be filed in the probate court in which the Notice had been filed.
This new Act leaves several issues unresolved and will certainly need amending after practice reveals the need for clarifications or further provisions.