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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 ...

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