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In re Estate of Thompson

Court of Appeals of Georgia

July 6, 2015

In re ESTATE OF THOMPSON

Guardian. Dodge Superior Court. Before Judge Johnson.

Stephen N. Hollomon, for appellant.

W. Dennis Mullis, for appellee.

DOYLE, Chief Judge. Phipps, P. J., and Boggs, J., concur.

OPINION

Page 159

Doyle, Chief Judge.

Robyn Thompson is a developmentally disabled adult and the daughter of Ben Thompson. Janice Driggers, Ben's mother, appeals from an order granting guardianship of Robyn to Ben. Driggers contends that the superior court erred by refusing her counsel's request to question Robyn's guardian ad litem (" GAL" ). For the reasons that follow, we reverse and remand for a new hearing.

The record shows that Driggers filed a petition in the probate court seeking appointment as Robyn's guardian.[1] Ben responded with a petition seeking guardianship of Robyn. Driggers was appointed to act as emergency guardian, and Joey Marchant, an attorney, was appointed to represent Robyn.[2] Following a hearing, the probate court entered an order granting guardianship to Ben, and Driggers appealed to the superior court. After a de novo review, including a hearing with Marchant participating as an attorney for Robyn, the superior court appointed Ben as guardian.[3] Driggers now appeals.

1.

Driggers contends that the superior court erred by denying her counsel's request to question Marchant at the hearing on her appeal of the probate court's order appointing Ben as guardian. This error was caused by the probate court and superior court treating Marchant as both the ward's attorney and the GAL. During the superior court hearing, 16 witnesses testified, including Ben and Driggers. Marchant was invited to participate in the examinations, and he asked questions of three of those witnesses. When discussing the order of closing arguments, Driggers's counsel asked if Marchant could provide the court with his findings. The court suggested that Marchant should give his recommendation after the attorneys for Ben and Driggers had presented their closing arguments. At that point, Driggers's counsel asked if they would be able to question Marchant, and the superior court replied, " Yes. If we get to that point and you need to, certainly." Counsel then proceeded to give their [332 Ga.App. 775] arguments, and Marchant followed with his conclusions, namely that either party would be a suitable guardian but recommending Ben because of his younger age, his training in psychology, and his work as a mental health professional.[4] When Driggers's counsel sought to ask Marchant a question, the superior court reconsidered its earlier decision, stating, " I don't know that Mr. Marchant signed on for cross-examination, if you will. I don't think that's his function as the guardian ad litem. ... He's discharged his responsibility by reporting to the [c]ourt his findings." Following a bench conference off the record, the trial court ruled on the record that counsel would not be able

Page 160

to question Marchant, which ruling Driggers now challenges.

Contrary to this procedure, OCGA § 29-9-3, which governs the appointment of GALs in guardianship cases such as this one, provides:

A person who is appointed as counsel for a ward, proposed ward, or alleged incapacitated person is not eligible to be appointed as guardian ad litem for the same individual, and a person who is appointed as guardian ad litem for a ward, proposed ward, or alleged incapacitated person is not eligible to be appointed as counsel for the same individual.

Thus, the statute clarifies that the GAL's role in a guardianship case is to serve as a resource for the court regarding the best interest of the ward, not as legal counsel for the ward, even if those roles may overlap sometimes. This framework avoids the ethical risks that arise when a ward's counsel is required to become a fact witness.[5] It also preserves the parties' right to cross-examination.[6]

[332 Ga.App. 776] In light of the clear statutory language in OCGA § 29-9-3 prohibiting an attorney from acting as both an advocate and a GAL, as well as the importance of the right to cross-examination, we conclude that the trial court erred by treating Marchant as both the attorney and the GAL, thereby prohibiting Driggers from questioning the GAL in this case. Accordingly, we remand the case to the superior court for a rehearing.[7]

2.

Driggers also argues that the superior court erred by failing to permit Robyn to testify as to her wishes. During the hearing, there was testimony from Robyn's personal physician explaining that if the judge were to speak to Robyn, her meaningful participation " would be possibly unlikely since she does not know [the judge] and this would be an unfamiliar environment to her." At the conclusion of the hearing, Driggers's counsel had not called Robyn as a witness but renewed his " request that the Court hear from Robyn Thompson." The court explained that at that point of the hearing it did not " want to put Robyn through it," and declined to call Robyn on its own. Although Driggers now challenges this ruling, we decline to address it in light of our ruling in Division 1. Driggers's argument depends on circumstances which may or may not recur at the next hearing, making an opinion on this enumeration

Page 161

advisory.[8]

Judgment reversed and case remanded.

Phipps, P. J., and Boggs, J., concur.


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