FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J, and BOGGS, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 6, 2015

In the Court of Appeals of Georgia

A15A0558. In re ESTATE OF THOMPSON. DO-027

DOYLE, Chief Judge.

Robyn Thompson is a developmentally disabled adult and the daughter of Ben

Thompson. Janice Driggers, Ben’s mother, appeals from an order granting

guardianship of Robyn to Ben. Driggers contends that the superior court erred by

refusing her counsel’s request to question Robyn’s guardian ad litem (“GAL”). For

the reasons that follow, we reverse and remand for a new hearing.

The record shows that Driggers filed a petition in the probate court seeking

appointment as Robyn’s guardian.

1 Ben responded with a petition seeking

guardianship of Robyn. Driggers was appointed to act as emergency guardian, and

1 Driggers’s petition was apparently prompted by alleged instability in the

household of Robyn’s mother, who had custody of Robyn and who had since

remarried after becoming divorced from Ben. 
Joey Marchant, an attorney, was appointed to represent Robyn.

2 Following a hearing,

the probate court entered an order granting guardianship to Ben, and Driggers

appealed to the superior court. After a de novo review, including a hearing with

Marchant participating as an attorney for Robyn, the superior court appointed Ben as

guardian.

3

 Driggers now appeals.

1. Driggers contends that the superior court erred by denying her counsel’s

request to question Marchant at the hearing on her appeal of the probate court’s order

appointing Ben as guardian. This error was caused by the probate court and superior

court treating Marchant as both the ward’s attorney and the GAL. During the superior

court hearing, 16 witnesses testified, including Ben and Driggers. Marchant was

invited to participate in the examinations, and he asked questions of three of those

witnesses. When discussing the order of closing arguments, Driggers’s counsel asked

2

It is unclear whether the probate court intended to appoint Marchant to act as

Robyn’s attorney or her GAL. The original appointment of Marchant characterizes

it as an “appointment of counsel” and makes no reference to a GAL; yet Marchant

apparently gave opinion testimony to the probate court that Ben be appointed

guardian, and the probate court’s subsequent guardianship order refers to Marchant

asthe GAL. Also, the superior court’s order appointing an emergency guardian refers

to Marchant as the GAL. 

3

In the superior court proceedings, Marchant acted as Robyn’s attorney by

participating in objections and cross-examination of witnesses. 

2
if Marchant could provide the court with his findings. The court suggested that

Marchant should give his recommendation after the attorneys for Ben and Driggers

had presented their closing arguments. At that point, Driggers’s counsel asked if they

would be able to question Marchant, and the superior court replied, “Yes. If we get

to that point and you need to, certainly.” Counsel then proceeded to give their

arguments, and Marchant followed with his conclusions, namely that either party

would be a suitable guardian but recommending Ben because of his younger age, his

training in psychology, and his work as a mental health professional.

4 When

Driggers’s counselsought to ask Marchant a question, the superior court reconsidered

its earlier decision, stating, “I don’t know that Mr. Marchant signed on for crossexamination, if you will. I don’t think that’s his function as the guardian ad litem. .

. He’s discharged his responsibility by reporting to the [c]ourt his findings.”

Following a bench conference off the record, the trial court ruled on the record that

counsel would not be able to question Marchant, which ruling Driggers now

challenges. 

4 Ben testified that he has a bachelor’s degree in psychology and a master’s

degree in counseling and serves as the director of day service programs at the local

community mental health center. Marchant was careful not to compare Robyn’s

condition to a mental health condition, but he nevertheless found Ben’s background

relevant.

3
Contrary to this procedure, OCGA § 29-9-3, which governs the appointment

of GALs in guardianship cases such as this one, provides that

[a] person who is appointed as counsel for a ward, proposed ward, or

alleged incapacitated person is not eligible to be appointed as guardian

ad litem for the same individual, and a person who is appointed as

guardian ad litem for a ward, proposed ward, or alleged incapacitated

person is not eligible to be appointed as counsel for the same individual.

Thus, the statute clarifies that the GAL’s role in a guardianship case is to serve as a

resource for the court regarding the best interest of the ward, not as legal counsel for

the ward, even if those roles may overlap sometimes. This framework avoids the

4
ethical risks that arise when a ward’s counsel is required to become a fact witness.

5

It also preserves the parties’ right to cross-examination.

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5 See, e.g., Georgia Rules of Professional Conduct, Rule 3.7 (a) (“A lawyer

shall not act as advocate at a trial in which the lawyer is likely to be a necessary

witness except where: the testimony relates to an uncontested issue; the testimony

relates to the nature and value of legal services rendered in the case; or

disqualification of the lawyer would work substantial hardship on the client.”)

(punctuation omitted); Amwest Sur. Ins. Co. v. Interstate Constr. Co., 212 Ga. App.

590, 591 (442 SE2d 772) (1994) (“An advocate who becomes a witness is in the

unseemly and ineffective position of arguing his own credibility. The roles of an

advocate and of a witness are inconsistent; the function of an advocate is to advance

or argue the cause of another, while that of a witness is to state facts objectively.”),

quoting Ethical Consideration 5-9 from former Canons of Ethics.

6 Under OCGA § 24-6-611 (b), “[t]he right of a thorough and sifting

cross-examination shall belong to every party as to the witnesses called against the

party.” In the domestic relations context, addressing a similar denial of a party’s

attempt to question a GAL, this Court has explained that

[t]his right is a substantial right, the preservation of which is essential

to a proper administration of justice, and extends to all matters within

the knowledge of the witness, the disclosure of which is material to the

controversy. Although a [GAL] technically is not a “witness called

against” a party in a custody dispute, . . . Uniform Superior Court Rule

[24.9 (7)] also provide[s] that a guardian ad litem “shall be subject to

examination by the parties and the court.”

(Citations and punctuation omitted.) Simmons v. Williams, 290 Ga. App. 644, 647 (1)

(660 SE2d 435) (2008). USCR 24.9 (7), applicable to domestic relations cases,

provides:

5
In light of the clear statutory language in OCGA § 29-9-3 prohibiting an

attorney from acting as both an advocate and a GAL, as well as the importance of the

right to cross-examination, we conclude that the trial court erred by treating Marchant

as both the attorney and the GAL, thereby prohibiting Driggers from questioning the

GAL in this case. Accordingly, we remand the case to the superior court for a

rehearing.

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2. Driggers also arguesthat the superior court erred by failing to permit Robyn

to testify as to her wishes. During the hearing, there was testimony from Robyn’s

personal physician explaining that if the judge were to speak to Robyn, her

meaningful participation “would be possibly unlikely since she does not know [the

judge] and this would be an unfamiliar environment to her.” At the conclusion of the

hearing, Driggers’s counsel had not called Robyn as a witness but renewed his

It is expected that the GAL shall be called as the Court’s witness at trial

unless otherwise directed by the Court. The GAL shall be subject to

examination by the parties and the court. . . The GAL shall not be

allowed to question witnesses or present argument, absent exceptional

circumstances and upon express approval of the Court.

7 See Simmons, 290 Ga. App. at 648 (1) (prohibiting examination of GAL

“resulted in the denial of a substantial right and thus warrants the grant of a rehearing

on the issue of custody.”).

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“request that the Court hear from Robyn Thompson.” The court explained that at that

point of the hearing it did not “want to put Robyn through it,” and declined to call

Robyn on its own. Although Driggers now challenges this ruling, we decline to

address it in light of our ruling in Division 1. Driggers’s argument depends on

circumstances which may or may not recur at the next hearing, making an opinion on

this enumeration advisory.

8

Judgment reversed and case remanded. Phipps, P. J., and Boggs, J., concur.

8 See Huff v. Harpagon Co., LLC, 286 Ga. 809, 811 (692 SE2d 336) (2010)

(“Georgia appellate courts are not authorized to render advisory opinions as to

potential error.”).

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