Trapnell v. Smith

205 S.E.2d 875, 131 Ga. App. 254, 1974 Ga. App. LEXIS 1393

• Court: Court of Appeals of Georgia
• Decided: March 13, 1974
• Docket: 48526
• Status: Published

Opinions

Stolz, Judge.

1. A most cursory examination of the record in this case reveals that the original proceedings to declare Mrs. Gertrude Trapnell incompetent and for the appointment of a guardian of her person and property were instituted and carried out under the authority of former Code Ann. Ch. 88-5, based upon Ga. L. 1964, pp. 499, 531-545; 1965, pp. 490, 491; 1967, p. 763; 1968, pp. 333, 334, which has been repealed and superseded by Ga. L. 1969, p. 505 et seq. (Code Ann. Ch. 88-5).

An examination of the record does not reveal that notice of the hearing was served on the patient, Mrs. Gertrude Trapnell, and that such notice was accompanied by "a plain and simple statement that [she] was entitled to counsel” as required by Code Ann. § 88-507.3 (c) (Ga. L. 1969, pp. 505, 532), or that Mrs. Trapnell ever waived such notice.

2. Code Ann. § 88-507.3 (a) provides that, "The court of ordinary shall enter the names and addresses of representatives of the patient on the petition. The patient may designate one representative; a second representative or, in the absence of designation of one representative by the patient, two representatives shall be selected by the court, one of whom shall be selected from the following in the order of listing, other than the person who executed the petition under section 88-507.2: the patient’s legal guardian, spouse, an adult child, parent, attorney, adult next-of-kin, or adult friend. The second representative shall be selected from the above list without regard to the order of listing. The court shall make diligent efforts to secure names and addresses of two representatives for the patient as provided herein. If the court is unable to secure such representatives after diligent search, that fact shall be entered in the record of the case, and the court shall appoint a guardian ad litem. Such guardian ad litem shall act as representative of the patient.” (Emphasis supplied.)

The record does not reveal the designation of any representatives by the patient or by the ordinary. It merely names the two adult next-of-kin living within the state as provided under a procedure that was repealed in 1969. Further, the statute permits the appointment of a guardian ad litem only when "the court is unable to secure such representatives after diligent search, [and] that fact shall be entered in the record of the case.” (Emphasis supplied.) On this requirement the record is again silent. Without such entry, the ordinary is powerless to appoint a guardian ad litem.

3. The commission found "the said Mrs. Gertrude H. Trapnell (not to be) (to be) a person incapable of managing her own estate and thus (not in need) (in need) of the appointment of a guardian.” The situation is not entirely dissimilar to that in Boockholdt v. Brown, 224 Ga. 737 (164 SE2d 836). In Boockholdt, the commission report failed to include the patient’s name and failed to state whether they found him "not to be” or "to be” a person incapable of managing his estate, and thus "not in need” or "in need” of a guardian.

4. "This court in Milam v. Terrell, 214 Ga. 199, 202 (104 SE2d 219), held: 'However, the appointment of guardians for persons of unsound mind who are incapable of managing their estates shall occur only after formal examination of such person as required by Code Ann. § 49-604. For this type of examination inquiring into a person’s capacity to manage his own estate the jurisdiction of the ordinary is extremely limited, the proceedings are summary and must be strictly construed, and must show on their face such facts especially as to the giving of notice, the issuance of the commission, and the return thereof, as will authorize the judgment appointing the guardian. Morton v. Sims, 64 Ga. 298; Templeman v. Jeffries, 172 Ga. 895 (159 SE 248).’ (Emphasis supplied.)

"Among our most cherished rights, as American citizens, are the freedom of choice as to our movements, to be free to go where and when we wish, and the right to control and use our worldly possessions as we see fit. To place another in control of our person and our possessions deprives us of these basic rights. The law permitting such deprivation should be strictly construed and all requirements of the law strictly complied with.” Boockholdt, supra, p. 739.

The jurisdiction of the ordinary, in issuing a commission to examine a person as to mental illness, competency, or the management of his estate, is limited; the proceedings are summary, and should be strictly construed. They must show on their face all facts essential to the ordinary’s jurisdiction and strict compliance with the statute. Milam v. Terrell, 214 Ga. 199, 202 (104 SE2d 219); Troutman v. Troutman, 118 Ga. App. 2, 3 (162 SE2d 446) and cits.

"The individual dignity of the patient shall be respected at all times and upon all occasions, including any occasion wherein the patient is taken into custody, detained or transported. Except where required under conditions of extreme urgency, those procedures, facilities, vehicles, and restraining devices normally utilized for criminals or those accused of crime shall not be used in connection with the mentally ill. Mentally ill patients or those suspected of being mentally ill shall, to the maximum extent reasonably possible, be treated at all times as medical patients and their handling and treatment shall be under the supervision of a physician. Notwithstanding any other provision of law to the contrary, no person who is receiving or has received services for a mental disorder shall be deprived of any civil, political, personal, or property rights without due process of law. No right or privilege granted by this Chapter shall be denied any person.” Code Ann. § 88-502.1 (Ga. L. 1969, pp. 505, 508).

The proceedings before the ordinary were a nullity. The judgment appointing the guardian was void and subject to attack by any person at any time. Code §§ 110-701, 110-709.

Submitted September 5, 1973 Decided March 13, 1974. Jones, Kemp & Osteen, Charles M. Jones, Billy N. Jones, for appellants. Cowart & Cowart, Dan S. Cowart, for appellee.

The judgment of the superior court overruling the appellant’s motion for judgment on the pleadings, is reversed.

Judgment reversed.

Bell C. J., Hall, P. J., Eberhardt, P. J., Been, Quillian, Evans and Clark, JJ, concur. Pannell, J., dissents.