§ 62-5-308 — Guardian; qualifications; priorities.

(A) In appointing a guardian, the court shall consider persons who are otherwise qualified in the following order of priority: (1) a person previously appointed guardian, other than a temporary or emergency guardian, currently acting for the ward in this State or elsewhere; (2) a person nominated to serve as guardian by the alleged incapacitated individual if he has sufficient mental capacity to make a reasoned choice; (3) an agent designated in a power of attorney by the alleged incapacitated individual, whose authority includes powers relating to the care of the alleged incapacitated individual; (4) the spouse of the alleged incapacitated individual or a person nominated as testamentary guardian in the will of the alleged incapacitated individual's deceased spouse; (5) an adult child of the alleged incapacitated individual; (6) a parent of the alleged incapacitated individual or a person nominated as testamentary guardian in the will of the alleged incapacitated individual's deceased parent; (7) the person nearest in kinship to the alleged incapacitated individual who is willing to accept the appointment; (8) a person with whom the alleged incapacitated individual resides outside of a health care facility, group home, homeless shelter, or prison; (9) a person nominated by a health care facility caring for the alleged incapacitated individual; and (10) any other person considered suitable by the court. (B) A person whose priority is based upon his status under subsections (A)(1), (3), (4), (5), (6), or (7) may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the alleged incapacitated individual, may decline to appoint a person having higher priority and appoint a person having lesser priority or no priority. (C) Other than as provided in Section 62-5-108, a probate judge or an employee of the court shall not serve as a guardian of a ward; except, a probate judge or an employee of the court may serve as a guardian of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.

Legislative History

HISTORY: 1986 Act No. 539, SECTION 1; 1990 Act No. 483, SECTION 4. Formerly Code 1976 SECTION 62-5-311, renumbered and amended by 2017 Act No. 87 (S.415), SECTION 5.A, eff January 1, 2019.