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In Re: Loftus

The probate court erred in dismissing the petition to terminate a guardianship and conservatorship and restore the ward's rights without holding a hearing.

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Catherine Mary Loftus a/k/a Catherine Mary Serewicz hereinafter, the ward currently is the ward of two of her adult children, both of whom serve as her co-guardians and one of whom serves as her conservator. Her brother, Thomas J. Loftus, petitioned the probate court to terminate the guardianship and conservatorship and restore her rights hereinafter, the restoration petition. The probate court dismissed the restoration petition for lack of probable cause without first conducting a hearing. The record, however, reflects probable cause such that the probate court should have conducted a hearing on the petition pursuant to OCGA §§ 29-4-42 b and 29-5-72 b. Accordingly, we reverse the dismissal of the petition and remand the case for further proceedings.

Georgia law permits “any interested person” to petition to terminate a guardianship or conservatorship and restore the ward’s rights. OCGA §§ 29-4-42 a; 29-5-72 a. If the petition and its supporting affidavits give rise to probable cause that the guardianship or conservatorship should be terminated, the court shall order an evaluation of the ward. OCGA §§ 29-4-42 b; 29-5-72 b. “If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that the guardianship or conservatorship should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing.” OCGA § 29-4-42 b; OCGA § 29-5-72 b.

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