Bill Text: GA SB134 | 2011-2012 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Guardianship, Workers Compensation, Trusts; make technical corrections, correct terminology and update cross-references reflecting the enactment

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2011-05-12 - Effective Date [SB134 Detail]

Download: Georgia-2011-SB134-Introduced.html

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11 LC 29 4544

Senate Bill 134

By: Senator Hamrick of the 30th

AS PASSED

A BILL TO BE ENTITLED
AN ACT

To amend Title 29, Chapter 9 of Title 34, and Chapter 12 of Title 53 of the Official Code of Georgia Annotated, relating to guardian and ward, workers' compensation, and trusts, respectively, so as make technical corrections, correct terminology, and update cross-references reflecting the enactment of the guardianship and trust codes in recent legislative sessions; to allow natural guardians of children to consent on behalf of a beneficiary if there is no conflict of interest; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 29 of the Official Code of Georgia Annotated, relating to guardian and ward, is amended by revising subsection (a) of Code Section 29-4-41, relating to modification of guardianship, as follows:

"(a) Upon the petition of any interested person, including the ward, or upon the court's own motion, the court may modify the guardianship by adjusting the duties or powers of the guardian, as defined in Code Sections 29-4-14 and 29-4-15 29-4-22 and 29-4-23, or the powers of the ward, as defined in Code Section 29-4-13 Sections 29-4-20 and 29-4-21, or by making other appropriate adjustments to reflect the extent of the current capacity of the ward or other circumstances of the guardianship. Except for good cause shown, the court shall order that notice of the petition be given, in whatever form the court deems appropriate, to the ward, the guardian, the ward's legal counsel, and the ward's conservator, if any. In any proceeding under this Code section that would expand or increase the powers of the guardian or further restrict the rights of the ward, the court shall appoint legal counsel for the ward. In all other cases, the court, in its discretion, may appoint legal counsel for the ward or a guardian ad litem, or both."

SECTION 2.

Said title is further amended by revising subsection (a) of Code Section 24-5-71, relating to modification of conservatorship, as follows:

"(a) Upon the petition of any interested person, including the ward, or upon the court's own motion, the court may modify the conservatorship by adjusting the duties or powers of the conservator, as defined in Code Sections 29-5-14 and 29-5-15 29-5-22 and 29-5-23, or the powers of the ward, as defined in Code Section 29-5-13 29-5-20 and 29-5-21, or by making other appropriate adjustments to reflect the extent of the current capacity of the ward or other circumstances of the conservatorship. Except for good cause shown, the court shall order that notice of the petition be given, in whatever form the court deems appropriate, to the ward, the conservator, the ward's legal counsel, if any, and the ward's guardian, if any. In any proceeding under this Code section that would expand or increase the powers of the conservator or further restrict the rights of the ward, the court shall appoint legal counsel for the ward. In all other cases, the court, in its discretion, may appoint legal counsel for the ward or a guardian ad litem, or both."

SECTION 3.

Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating to workers' compensation, is amended by revising subsection (c) of Code Section 34-9-102, relating to hearing before an administrative law judge, as follows:

"(c) Authority of administrative law judge. The administrative law judge conducting the hearing shall have, in addition to all powers necessary to implement this chapter, the following powers: to administer oaths and affirmations, to issue subpoenas, to rule upon offers of proof, to regulate the course of the hearing, to set the time and place for continued hearings, to fix the time for filing briefs, to dispose of motions to dismiss for lack of board jurisdiction, to rule on requests for continuance, to add or delete parties with or without motion, to issue interlocutory orders, to rule upon or dispose of all other motions, to appoint guardians conservators under Code Section 34-9-226, to reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the administrative law judge, and to require any party to provide the board with the name of its legal representative, if any, within 21 days from the date of the hearing notice."

SECTION 4.

Said chapter is further amended by revising subsections (b) and (c) of Code Section 34-9-225, relating to effect of written receipt of widow or widower, minor, or guardian upon liability of employer, as follows:

"(b) Whenever payment in accordance with the terms of this chapter is made to any employee 18 years of age or over, the written receipt of such person shall release and discharge the employer. In cases where a person under the age of 18 years shall be entitled to receive a sum or sums amounting in the aggregate to not more than $300.00 as compensation for injuries or as a distributive share by virtue of this chapter, the father or mother as natural guardian or the legally appointed guardian conservator of such person shall be authorized and empowered to receive such moneys for the use and benefit of such person and to receipt therefor; and the release or discharge by such father or mother as natural guardian or by the legally appointed guardian conservator shall be in full and complete discharge of all claims or demands of such person thereunder.

(c) Whenever payment of over $300.00, in accordance with the terms of this chapter, is provided for a person under 18 years of age or for a person over 18 who is physically or mentally incapable of earning, the payment shall be made to his or her duly and legally appointed guardian conservator or to some suitable person or corporation appointed as trustee by the superior court as provided in Code Section 34-9-223; and the receipt of such guardian conservator or such trustee shall release and discharge the employer."

SECTION 5.

Said chapter is further amended by revising Code Section 34-9-226, relating to appointment of guardian for minor or incompetent claimant, as follows:

"34-9-226.

(a) Except as provided in this Code section, the only person capable of representing a minor or legally incompetent claimant entitled to workers' compensation benefits shall be a guardian conservator duly appointed and qualified by the probate court of the county of residence of such minor or legally incompetent person or by a court of competent jurisdiction outside the State of Georgia. Said guardian conservator shall be required to file with the board a copy of the guardianship conservatorship returns filed annually with the probate court or with a court of competent jurisdiction outside the State of Georgia and give notice to all parties within 30 days of any change in status.

(b) The board shall have authority in and shall establish procedures for appointing temporary guardians conservators for purposes of administering workers' compensation rights and benefits without such guardian conservator becoming the legally qualified guardian conservator of any other property, without such guardian's conservator's actions being approved by a court of record, and without the posting of a bond, in only the following circumstances:

(1) The board may, in its discretion, authorize and appoint a temporary guardian conservator of a minor or legally incompetent person to receive and administer weekly income benefits on behalf of and for the benefit of said minor or legally incompetent person for a period not to exceed 52 weeks unless renewed or extended by order of the board;

(2) The board may, in its discretion, authorize and appoint a temporary guardian conservator of a minor or legally incompetent person to compromise and terminate any claim and receive any sum paid in settlement for the benefits and use of said minor or legally incompetent person where the net settlement amount approved by the board is less than $50,000.00; and

(3) If a minor or legally incompetent person does not have a duly appointed representative or guardian conservator, the board may, in its discretion, appoint a guardian ad litem to bring or defend an action under this chapter in the name of and for the benefit of said minor or legally incompetent person to serve for a period not to exceed 52 weeks, unless renewed or extended by order of the board. However, no guardian ad litem appointed pursuant to this Code section shall be permitted to receive the proceeds from any such action except as provided in this Code section and the board shall have the authority to determine compensation, if any, for any guardian ad litem appointed pursuant to this Code section."

SECTION 6.

Chapter 12 of Title 53 of the Official Code of Georgia Annotated, relating to trusts, is amended by revising paragraph (10) of Code Section 53-12-2, relating to definitions, as follows:

"(10) 'Qualified beneficiary' means a living individual or other existing person who, on the date of determination of beneficiary status:

(A) Is a distributee or permissible distributee of trust income or principal;

(B) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) of this paragraph terminated on that date without causing the trust to terminate; or

(C) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

The Attorney General has the rights of a qualified beneficiary with respect to a charitable trust as defined in Code Section 53-12-170, and a person appointed to enforce a trust created for the care of an animal under Code Section 53-12-28 also has the rights of a qualified beneficiary."

SECTION 7.

Said chapter is further amended by revising paragraph (5) of subsection (a) of Code Section 53-12-7, relating to when a trust and this chapter are in conflict, as follows:

"(5) As to the effect of a provision relieving a trustee from liability as provided in Code Section 53-12-290 53-12-303; and"

SECTION 8.

Said chapter is further amended by adding a new Code section to read as follows:

"53-12-8.

For purposes of this chapter, a parent may represent and bind such parent's minor child or unborn child if a conservator or guardian for the child has not been appointed and there is no conflict of interest between the parent and child."

SECTION 9.

Said chapter is further amended by revising Code Section 53-12-20, relating to an express trust, as follows:

"53-12-20.

(a) Except as provided in subsection (d) of this Code section, an An express trust shall be created or declared in writing and signed by the settlor or an agent for the settlor acting under a power of attorney containing express authorization.

(b) An express trust shall have, ascertainable with reasonable certainty:

(1) An intention by a settlor to create such trust;

(2) Trust property;

(3) Except for charitable trusts or a trust for care of an animal, a beneficiary who is reasonably ascertainable at the time of the creation of such trust or reasonably ascertainable within the period of the rule against perpetuities;

(4) A trustee; and

(5) Trustee duties specified in writing or provided by law.

(c) The requirement that a trust have a reasonably ascertainable beneficiary shall be satisfied if under the trust instrument the trustee or some other person has the power to select the beneficiaries based on a standard or in the discretion of the trustee or other person.

(d) In the case of a trust created pursuant to 42 U.S.C. Section 1396p(d)(4)(B) by an agent acting for the settlor, the power of attorney need not contain an express authorization to create or declare a trust."

SECTION 10.

Said chapter is further amended by revising subsection (d) of Code Section 53-12-201, relating to appointment and vacancies, as follows:

"(d) If all the qualified beneficiaries are sui juris, or if some of the qualified beneficiaries are not sui juris but all have a guardian or conservator, the qualified beneficiaries may appoint a trustee by unanimous consent. For purposes of this paragraph a parent may represent and bind such parent's minor or unborn child if a conservator or guardian for the child has not been appointed and there is no conflict of interest between the parent and the child with respect to the appointment of a trustee."

SECTION 11.

Said chapter is further amended by revising paragraph (1) of Code Section 53-12-211, relating to compensation of cotrustees and successor trustees, as follows:

"(1) Each cotrustee shall be compensated as specified by the terms of the trust, as each trustee may have agreed or in accordance with a published fee schedule, and such compensation among cotrustees shall not be apportioned unless they shall agree otherwise; and"

SECTION 12.

Said chapter is further amended by revising paragraph (29) of subsection (b) of Code Section 53-12-261, relating to powers of trustees, as follows:

"(29) To serve without making and filing inventory and appraisement, without filing any annual or other returns or reports to any court, and without giving bond; but, in addition to any rights the beneficiaries may have under subsection (b) of Code Section 53-12-243, the fiduciary a personal representative shall furnish to the income beneficiaries, at least annually, a statement of receipts and disbursements."

SECTION 13.

Said chapter is further amended by revising subsection (d) of Code Section 53-12-263, relating to incorporation of powers by reference, as follows:

"(d)(1) A provision in any will or trust instrument which incorporates powers by citation to Georgia Laws 1973, page 846; Code 1933, Section 108-1204 (Harrison); or former Code Section 53-12-40 or, 53-12-232, or 53-15-3 which were in effect at the time the trust was created and which was valid under the law in existence at the time the will was signed by the testator or at the time of the signing by the first settlor who signs the trust instrument shall be effective notwithstanding the subsequent repeal of such statute.

(2) A provision in any will or trust instrument which was signed by the testator or by the first settlor to sign after June 30, 1991, but before July 1, 1992, and which incorporates powers by citation to former Code Section 53-12-40 or 53-15-3 in effect on the date of such signing shall be deemed to mean and refer to the corresponding powers contained in former Code Section 53-12-232."

SECTION 14.

Said chapter is further amended by revising subsection (a) of Code Section 53-12-321, relating to foreign entities acting as trustees, as follows:

"(a) Any foreign entity may act in this state as trustee, executor, administrator, guardian, or any other like or similar fiduciary capacity, whether the appointment is by law, will, deed, inter vivos trust, security deed, mortgage, deed of trust, court order, or otherwise without the necessity of complying with any law of this state relating to the qualification of foreign entities to do business in this state or the licensing of foreign entities to do business in this state, except as provided in this article, and notwithstanding any prohibition, limitation, or restriction contained in any other law of this state, provided only that:

(1) The foreign entity is eligible to act as a fiduciary in this state under Code Section 7-1-242; and

(2) The the foreign entity is authorized to act in the fiduciary capacity in the state in which it is incorporated or organized or, if the foreign entity is a national banking association, in the state in which it has its principal place of business."

SECTION 15.

Said chapter is further amended by revising paragraph (5) of subsection (a) of Code Section 53-12-323, relating to filing statement with the Secretary of the State and appointment of agent for service, as follows:

"(5) That it is authorized to act in a similar fiduciary capacity in the state in which it is incorporated or organized or, if it is a national banking association, in which it has its principal place of business and the basis on which it is eligible to act as a fiduciary in Georgia under Code Section 7-1-242; and"

SECTION 16.

Said chapter is further amended by redesignating Article 18, relating to allocation of disbursements during administration of trust, as Part 5 of Article 17, relating to the "Georgia Principal and Income Act."

SECTION 17.

Said chapter is further amended by revising paragraph (5) of subsection (a) of Code Section 53-12-451, relating to disbursements of principal, as follows:

"(5) Premiums paid on a policy of insurance not described in Section 501(4) of the federal Internal Revenue Code of 1986 paragraph (4) of subsection (a) of Code Section 53-12-450, of which the trust is the owner and beneficiary;"

SECTION 18.

Said chapter is further amended by revising paragraph (3) of subsection (b) of Code Section
53-12-452, relating to transfers from income to principal for depreciation, as follows:

"(3) Under this Code section if the trustee is accounting under Section 403 of the federal Internal Revenue Code of 1986 Code Section 53-12-412 for the business or activity in which the asset is used."

SECTION 19.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 20.

All laws and parts of laws in conflict with this Act are repealed.