Conservator has exclusive power to bring, defend or participate in lawsuits for a ward

in Hall v. Davis Lawn Care Service, Inc., 314 Ga. 488 (S22G0019 8/23/2022), the Supreme Court unravelled some messy litigation where a conservator was appointed for a minor, but was deemed by the lower courts as having forfeited his exclusive power to bring, defend or participate in legal proceedings for his ward pursuant to OCGA § 29-3-22(a)(6). in doing so, the Court reversed the decision in Hall v. Hill, 360 Ga. App. 635 (859 SE2d 897) (2021).

In May 2016, Shauntrice Jones died in a car accident. Soon after, her mother, Margaret Hill, as guardian ad litem, brought a wrongful-death case against both the driver of the pickup truck that hit Jones’s car and his employer, Davis Lawn Care Service in Thomas County Superior Court. Seperately, Mrs. Hill petitioners the Mitchell County Probate Court to be appointed conservator of Jones’ two children. Maurice Williams, father of one of the children, objected and asked the court to appoint Michael Hall, the County Administrator as conservator. Ultimately, the Probate Court appointed Hall.

Hall wanted to pursue the case in Gwinnett County rather than Thomas County. Hall filed a new case in Gwinnett County and tried to shut down the case in Thomas County. The defendants objected, moved to consolidate the Gwinnett and Thomas cases in Thomas County and moved to join Hall as a plaintiff in Thomas County.

The Judge in Thomas County:

(1) denied Williams’s earlier request to remove Hill as guardian ad litem; (2) denied Hall’s “Notice to Court of Improper Plaintiff and Counsel and Request for Dismissal Without Prejudice” because Hill, as guardian ad litem, was the proper party to file the lawsuit; (3) consolidated the wrongful-death and survival claims in the Gwinnett County case with the Thomas County case; and (4) joined Hall as an involuntary plaintiff under OCGA § 9-11-19(a) in his capacities as administrator of Jones’s estate and conservator for the minor children.

Hall continued his attempts to take control of the litigation and move it to Gwinnett County. Hill opposed his efforts. In Thomas County she moved to remove Hall from the case and enjoin him from “thwarting [its] prosecution,” arguing that the court had determined that she was the proper party to bring the wrongful-death claims. In August 2020, the Thomas County Superior Court issued three orders: (1) an order striking Hall’s dismissal of his Gwinnett County State Court claims, which had been consolidated with the Thomas County case; (2) an order removing Hall as a plaintiff in the
Thomas County case and enjoining him from further filings; and (3) an order denying Hall’s cross-motion to remove and enjoin Hill.

Hall appealed the Thomas County and Gwinet County Orders and they were consolidated on appeal. The Court noted a conservators exclusive control over litigation, but asked “how does the conservator exercise this power if a case on behalf of the minor has been properly initiated before the  conservator is appointed?” Ultimately the Court determined Hall forfeited his right to control the litigation by not partcipating in the Thomas County case.

The Georgia Supreme Court framed the issue on appeal as:

Whether the Court of Appeals correctly determined that a conservator of minors [Hall] had forfeited his exclusive power to participate in litigation on behalf of the minors under OCGA § 29-3-22(a)(6) after being involuntarily joined in litigation that had been initiated by the minors’ guardian ad litem [Hill] prior to the conservator’s appointment[.]

In holding that the lower courts erred, the Court examined the naute of exclusive powers. Not only does it give the conservator exclusive power to bring, defend and participate in legal proceedings; it also gives him power to exclude others from doing so. Further, this exclusive power vests by statute, without further order from the probate court, upon appointment. The power is immediate. Thus, at the moment Hall was appointed as conservator, he alone held the legal authority to participate in legal proceedings on behalf of the minor children.

The Court of Appeals answered the question it posed improperly. They viewed Hall’s attempt to bring the action in Gwinnett County, rather than joining the Thomas County litigations as an abandonment or forfieture of his power. The Supreme Court rejected that conclusion. It held a conservator who declines to join litigation brought by another on the minor’s behalf and seeks to have that litigation dismissed is not acting “contrary to” exercising his exclusive power: he is trying to exercise it.

The Court did not, however, resolve a separate procedural question lurking in this case: if, as here, a case is brought on a minor’s behalf before a conservator is appointed, what procedural steps, if any, must the new conservator take to exercise his exclusive power to participate in it on the minor’s behalf?

This case is significant because it makes Georgia guardianship and conservatorship law clear: when the statute grants a guardian or conservator exclusive power, not only is the guardian and/or conservator the exclusive person with authority to act, he or she also has power to exclude others from acting.