Holding of investments; corporate fiduciaries

(a) Whenever by law or by court order the conservator is authorized, permitted, required, or directed to invest funds in direct and general obligations of the United States government, obligations unconditionally guaranteed by the United States government, or obligations of the agencies of the United States government enumerated in Code Section 29-5-32, the conservator may invest in and hold such obligations either directly or in the form of securities or other interests in any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. Sections 80a-1, et seq., so long as: (1) The portfolio of such investment company or investment trust is limited to such obligations and repurchase agreements fully collateralized by such obligations; (2) Such investment company or investment trust takes delivery of such collateral, either directly or through an authorized custodian; and (3) Such investment company or investment trust is operated so as to provide a constant net asset value or price per share. (b) The authority granted in this Code section shall be applicable notwithstanding that a corporate fiduciary or an affiliate of the corporate fiduciary provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services. (Code 1981, § 29-5-33, enacted by Ga. L. 2004, p. 161, § 1.) 29-5-34. Prudence required from conservator in making investments; acquisition and retention of property. (a) After receiving court approval as required in subsections (b) and (c) of Code Section 29-5-23, in making investments and in acquiring and retaining those investments and managing property of the ward, the 690 29-5-35 conservator shall exercise the judgment and care, under the circumstances then prevailing, that a prudent person acting in a like capacity and familiar with such matters would use to attain the purposes of the account. In making such investment decisions, a conservator may consider the general economic conditions, the anticipated tax consequences of the investments, the anticipated duration of the account, and the needs of the ward and those entitled to support from the ward. (b) Within the limitations of the standard provided in subsection (a) of this Code section and with prior approval by the court in accordance with Code Section 29-5-23, a conservator is authorized to acquire and retain every kind of property, including real, personal, or mixed and every kind of investment, specifically including, but not by way of limitation, bonds, debentures and other corporate obligations, and stocks, preferred or common, including the securities of or other interests in any open-end or closed-end management investments company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. Sections 80a-1, et seq. The propriety of an investment is to be determined by what the conservator knew or should have known at the time of the decision about the inherent nature and expected performance of a particular investment, including probable yield, the attributes of the portfolio, the general economy, and the needs of the ward and those entitled to support from the ward as they existed at the time of the decision. Any determination of liability for investment performance shall consider not only the performance of a particular investment but also the performance of the ward’s portfolio as a whole. Within the limitations of such standard, a conservator may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase. (c) A conservator that is a financial institution, trust company, national or state bank, savings bank, or savings and loan association described in Code Section 7-1-242 shall not be precluded from acquiring and retaining securities of or other interests in an investment company or investment trust because the bank or trust company or an affiliate provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services. (Code 1981, § 29-5-34, enacted by Ga. L. 2004, p. 161, § 1.) 29-5-35. Sale of perishable property; sale of other properties; disposal of other properties; accounting for proceeds; authority of emergency or temporary substitute conservator. (a) A conservator may sell perishable property of the ward, property of the ward that is liable to deteriorate from keeping, or property of the 691 29-5-35 ward that is expensive to keep, as early as practicable and in such manner as the court shall determine is in the best interest of the ward, after such notice and opportunity for hearing, if any, as the court shall deem practicable under the circumstances. (b) A conservator may sell stocks or bonds of the ward that are either listed or admitted to unlisted trading privileges upon any stock exchange or quoted regularly in any newspaper having a general circulation in Georgia at a sales price not less than the stock exchange bid price or the published bid price at the time of sale and pay reasonable brokerage commissions not in excess of those customarily charged by stock exchange members. (c) Except as otherwise provided in subsections (a) and (b) of this Code section, a conservator may petition the court to sell, rent, lease, exchange, or otherwise dispose of property of the ward, whether real or personal or mixed. The petition shall set forth the property involved and the interests therein, the specific purpose of the transaction, the proposed price, the anticipated net proceeds of the sale, all other terms or conditions proposed for the transaction, and that the proposed transaction is in the best interest of the ward. (d) Upon the filing of the petition, the court shall appoint a guardian ad litem for the ward. The petition and notice shall be served personally on the ward and the guardian ad litem. (e) If no written objection by a person notified pursuant to subsection (d) of this Code section is filed within 30 days following the mailing of notice or service upon the guardian ad litem, the court shall order such sale summarily in the manner and terms petitioned; provided, however, that if real property is to be converted to personal property, the court shall order the conservator to post additional bond to cover the amount of the anticipated net proceeds of the sale prior to the closing of the sale. If an objection is filed, the court shall hear the matter and grant or deny the petition for sale or make such other order as is in the best interest of the ward, which may require the sale to be private or at public auction, including confirmation of the sale by the court or otherwise. (f ) A conservator shall make a full return to the court within 30 days of every sale, specifying the property sold, the purchasers, and the amounts received, together with the terms of the sale. (g) The recital in the conservator’s deed of a compliance with legal provisions shall be prima-facie evidence of the facts recited. (h) Where a conservator sells real property under the provisions of this Code section, liens thereon may be divested and transferred to the proceeds of the sale as a condition of the sale. (i) An emergency or temporary substitute conservator is authorized to petition the court for leave to sell or otherwise deal with the property 692 29-5-36 of the estate only if good cause is shown for not waiting until a different type of conservatorship is created or the conservatorship is terminated. (Code 1981, § 29-5-35, enacted by Ga. L. 2004, p. 161, § 1.)