In re Estate of Wertzer

• Decision Date: 12 November 2014
• Docket Number: No. A14A1444.,A14A1444.
• Citation: 330 Ga.App. 294,765 S.E.2d 425
• Court: Georgia Court of Appeals
• Parties: In re ESTATE OF WERTZER.

330 Ga.App. 294

765 S.E.2d 425

In re ESTATE OF WERTZER.

No. A14A1444.

Court of Appeals of Georgia.

Nov. 12, 2014.

Reconsideration Denied Dec. 10, 2014.

O'Dell & O'Neal, Leslie Dean O'Neal, Marietta, for Appellant.

Chan Law Firm, Ophelia Wai Yan Chan, Marietta, for Appellee.

Opinion

McMILLIAN, Judge.

The parties to this appeal, Grace Wertzer (“mother”) and Saul Wertzer (“father”), are the biological parents of Sierra Leigh Wertzer, an incapacitated adult.¹ The primary issue in this appeal is whether the probate court had the authority to enter an order establishing a visitation schedule with the father, over the objection of the mother, who had been appointed Sierra's guardian and conservator. We now hold that the probate court does have such authority.

The record and hearing transcripts show that the mother and father were divorced in 2004. Pursuant to the terms of the parties' settlement agreement, the mother was granted sole legal and physical custody of Sierra. The father was granted limited visitation with Sierra, which was supervised for the first year following the divorce.² This plan apparently remained unchanged until the present proceedings were instituted.

In April 2013, the father filed a petition to modify visitation in the superior court. In response, the mother moved to suspend the father's visitation and for attorney fees. In May 2013, the mother filed a Petition for Appointment of a Guardian and/or Conservator in the Cobb County Probate Court in anticipation of Sierra's 18th birthday.³ The father subsequently moved to intervene and for additional relief, seeking to continue and extend the visitation he had been granted in the divorce proceedings to include overnight visits and a week-long visitation period in the summer. Additionally, the father requested that the mother notify him of any changes to Sierra's medical condition, maintenance medications, physicians, and residential status. Alternatively, the father sought to be appointed co-guardian along with the mother.

On July 29, 2013, the probate court granted the father's request to intervene in the guardianship proceedings, but reserved ruling on the other relief requested in his motion. Two days later, the probate court granted the mother's petition for guardianship/conservatorship, but once again reserved ruling on the other relief requested in the father's motion to intervene. Subsequently, the mother filed a petition in the probate court to dismiss the father's request for visitation, contending that the probate court lacked authority to “force” Sierra to visit with her father.

The probate court denied the mother's motion to dismiss the father's petition on October 30, 2013.⁴ Sierra turned 18 on November 20, 2013, and on December 3, 2013, the probate court issued letters of guardianship and conservatorship to the mother pursuant to its earlier order granting the petition for guardianship.

Following a multi-day hearing which commenced on December 9, 2013, the probate court issued an order granting the father supervised visitation with Sierra during the third weekend of each month. The probate court slightly extended the hours of the Saturday visits, but denied the father's request for overnight visitation and for an extended visitation period during the summer. The probate court noted that the mother and her counsel did not appear to have any objections to the father being informed of changes to Sierra's medical condition, medications or residence, and additionally ordered, consistent with the parties' prior divorce settlement agreement, that the parents confer with each other on all important matters pertaining to Sierra's health, welfare, and education, and that each parent notify the other in the event they become aware that Sierra is suffering from any serious illness. Further, the mother was required to allow the father access to Sierra's medical information and to all information regarding Sierra's education.⁵

The mother appeals, arguing that: (1) the probate court exceeded its authority by “imposing” a “required” visitation schedule on an adult ward; (2) the probate court's order improperly impedes her duties as a guardian; (3) the probate court erred by finding that the visitation was in Sierra's best interest; and (4) the probate court erred by requiring her to communicate on a regular basis with the father and to confer with him regarding all important matters related to Sierra.

1. We first address the probate court's authority to enter the visitation order, which requires an examination of the jurisdiction of the probate court and the rights and obligations of the guardian and ward. Pursuant to OCGA § 15–9–30(a), and unless otherwise provided by law, probate courts have the authority to exercise original, exclusive, and general jurisdiction over

(5) The appointment and removal of ... guardians of incapacitated adults, and conservators of incapacitated adults and persons who are incompetent because of mental illness or mental retardation;

(6) All controversies as to the right of guardianship ...; [and ... ]

(10) All other matters and things as appertain or relate ... to persons who are incompetent because of mental illness or mental retardation[.]

OCGA § 15–9–30(a)(5), (6), (10). Gnann v. Woodall, 270 Ga. 516, 517, 511 S.E.2d 188 (1999). Additionally, OCGA § 29–4–13(a) provides that the order granting or denying the guardianship “shall specify,” among other things, “(2) Any powers retained by the ward ...; (3) The limitations on the guardianship; ... [and] (7) Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the ward, stating the reasons therefor.

” (Emphasis supplied.)

OCGA § 29–4–22, in turn, governs the obligations and decision-making authority of the guardian. Under subsection (a), “[e]xcept as otherwise provided by law or by the court, ” a guardian has the right to make decisions concerning “the ward's support, care, education, health, and welfare.” In making such decisions, the guardian is required to consider “the expressed desires and personal values of the ward[, and] shall at all times act as a fiduciary in the ward's best interest and exercise reasonable care, diligence and prudence.”OCGA § 29–4–22(a). Subsection (b) requires the guardian to arrange for the support, care, education, health, and welfare of the ward, and to make reports to the probate court on a regular basis. OCGA § 29–4–22(b)(6) & (9).

Additional rights and powers are granted to the guardian under OCGA § 29–4–23. Accordingly, “[u]nless inconsistent with the terms of any court order relating to the guardianship, a guardian may” take custody of the ward, give consents or approvals for medical or other professional care, bring or defend legal actions on behalf of the ward, and exercise other powers which are reasonably necessary to provide for the ward. OCGA § 29–4–23(a). Under subsection (b), the probate court may grant other specific powers to the guardian, such as to establish the ward's place of dwelling outside the state, bring an action for divorce, or consent to the adoption of the ward.

Adult wards also have certain statutory rights as are set forth in OCGA § 29–4–20. Those rights include the right to a guardian who acts in the ward's best interest, OCGA § 29–4–20(a)(1), and the right to “[c]ommunicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction[.]” OCGA § 29–4–20(a)(4).

Moreover, OCGA § 29–4–40 gives the probate court continuing judicial oversight to ensure that the ward's rights and privileges are protected and gives the court the authority to conduct a judicial inquiry or issue orders either upon the filing of a petition or on its own motion. And OCGA § 29–4–41 allows the court to modify the guardianship “by adjusting the duties or powers of the guardian, as defined in [OCGA §§ ] 29–4–22 and 29–4–23,” based on a change in capacity of the ward or upon a showing that the modification is in the ward's best interest. OCGA § 29–4–41(a) and (c).⁶

We glean from these provisions that the legislature intended to grant the guardian broad authority to make decisions and act on the behalf of an incapacitated adult ward. But those powers and rights are not unfettered. Rather, the grant of powers and rights to the guardian is expressly made subject to orders of the probate court. See OCGA §§ 29–4–22(a) (“[e]xcept as otherwise provided ... by the court ...”); 29–4–23 (“unless inconsistent with the terms of any order relating to the guardianship ...”). Further, the probate court is expressly given the authority to place limitations on the guardianship and to determine “other and further provisions of the guardianship ... in the best interest of the ward ...” See OCGA §§ 29–4–13(a)(3) & (7) ; 29–4–40; 29–4–41. Accordingly, the grant of authority to the probate court to oversee guardianships is also broad. Heath v. Sims, 242 Ga.App. 691, 693(1), 531 S.E.2d 115 (2000) (“with respect to areas in which the probate court has been given exclusive, original subject matter jurisdiction, its authority is broad.”).

As recognized in the probate court's order, the ward also retains certain rights, including the right to “[c]ommunicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction[.]”⁷ OCGA § 29–4–20(a)(4). The mother asserts, however, that “communicate is not synonymous” with “visit” and argues that if the legislature had intended to give the ward the right to “visit” with persons other than the guardian it would have so provided, just as it did when it enacted “entire code sections” on visitation plans between non-custodial parents and their children. But we are not persuaded by this “in pari materia” argument as it is based on a false premise—that child custody and visitation statutes in Title 19 are related in subject matter to the guardianship statutes in Title 29. S...