29-4-12. Judicial review of pleadings and evaluation report; findings; hearing.

After the filing of the evaluation report, the court shall review the pleadings and the evaluation report.#

If, after the review, the court finds that there is no probable cause to support a finding that the proposed ward is in need of a guardian within the meaning of Code Section 29-4-1, the court shall dismiss the petition.#

If, after the review, the court finds that there is probable cause to support a finding that the proposed ward is in need of a guardian, the court shall schedule a hearing on the petition. Notice of the hearing shall be served by first-class mail upon the proposed ward, the proposed ward’s legal counsel, and the proposed ward’s guardian ad litem, if any; the petitioner or the petitioner’s legal counsel, if any; and all adult individuals and other persons who are named in the petition pursuant to the requirements of paragraphs (7), (8), and (9) of subsection (b) of Code Section 29-4-10. The date of the hearing shall not be less than ten days after the notice is mailed.#

1. (1)

   The hearing shall be held in a courtroom or, for good cause shown, at such other place as the court may choose. At the request of the proposed ward or the proposed ward’s legal counsel and for good cause shown, the court may exercise its discretion to exclude the public from the hearing and the record shall reflect the court’s action. The proposed ward or the proposed ward’s legal counsel may waive the appearance of the proposed ward at the hearing.#

2. (2)

   The hearing shall be recorded by either a certified court reporter or a sound-recording device. The recording shall be retained for not less than 45 days from the date of the entry of the order described in Code Section 29-4-13.#

3. (3)

   The court shall apply the rules of evidence applicable in civil cases.#

4. (4)

   At the hearing, the proposed ward may also challenge, by appropriate evidence and argument, the sufficiency and weight of the results and conclusions of the evaluation and written report and the qualifications, experience, or abilities of the person performing the evaluation. The proposed ward shall have the right to present such evidence and argument regardless of whether the proposed ward’s legal counsel raised such matters in a written response submitted by the proposed ward’s legal counsel pursuant to paragraph (6) of subsection (d) of Code Section 29-4-11.#

5. (5)

   The court shall utilize the criteria in Code Section 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing. In addition, the court may consider the evaluation report and any response filed or argument and evidence presented by the proposed ward. The burden of proof shall be upon the petitioner.#

6. (6)

   If the court finds that the proposed ward has one or more developmental disabilities as defined in paragraph (8) of Code Section 37-1-1, the court shall not find that there is a need for a guardianship unless the evidence shows by clear and convincing evidence that, due to such developmental disability or disabilities and other factors that may be present, the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.#

7. (7)

   Upon determination of the need for a guardianship, the court shall determine the powers, if any, which are to be retained by the proposed ward, in accordance with the provisions of Code Section 29-4-21 and whether any additional powers are to be granted to the guardian, pursuant to the provisions of subsection (b) of Code Section 29-4-23.#

8. (8)

   If the court determines that a guardianship is necessary and the proposed ward is present, the proposed ward may suggest any individual as guardian. The court shall select as guardian the individual who will serve the best interest of the ward.#

9. (9)

   In any procedure under this chapter in which the judge of the court is unable to hear a case within the time required for such hearing, the judge shall appoint an individual to hear the case and exercise all the jurisdiction of the court in the case. Any individual appointed shall be a member of the State Bar of Georgia who is qualified to serve as the probate judge in that county and who is, in the opinion of the appointing judge, qualified for the duties by training and experience. The appointment may be made on a case-by-case basis or by making a standing appointment of one or more individuals. Any individual who receives a standing appointment shall serve at the pleasure of the judge who makes the appointment or the judge’s successor in office. The compensation of an individual appointed shall be as agreed upon by the judge who makes the appointment and the individual appointed, with the approval of the governing authority of the county for which the individual is appointed, and shall be paid from county funds. All fees collected for the service of the appointed individual shall be paid into the general funds of the county.#