Guardianship Evaluation

In most cases I’ve been involved in, the evaluator’s report is stipulated into evidence or the evaluator is called as a witness. The reason is that the report cannot be cross-examined so the thought was that it’s subject to a hearsay objection. A recent case taught me otherwise (at least in Georgia). In my recent case, we subpoenaed the evaluator as a witness because the court appointed lawyer for the proposed ward refused to stipulate the report. The evaluator was a no-show despite the subpoena. This forced us to take a closer look at O.C.G.A. § 29-4-12(d)(4). That subsection states:

The court shall utilize the criteria in Code Section 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing.  In addition, the court may consider the evaluation report and any response filed by the proposed ward.  The burden of proof shall be upon the petitioner.

Subsection (d)(4) makes it clear that the evaluation report may be considered regardless of a hearsay objection. Although not stated in the guardianship code, this conclusion seems to be consistent with the “Public records and reports” exception in O.C.G.A.§ 24-8-803, but regardless, the Court may give it consideration even if a hearsay objection is raised. In my case, the Court concluded that the absence of the evaluator could be considered when determining the weight given to the report, but the report was nonetheless admissible.

This result is different from Hall v. Humphrey, a Tennessee case we discussed in April 2023.