In Re: Janet Barnett Dixon, Proposed Ward
CourtCourt of Appeals of Georgia
Date FiledOctober 26, 2026
DocketA26A1178
StatusPublished
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Full Opinion
THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 26, 2026
In the Court of Appeals of Georgia
A26A1178. IN RE: DIXON, PROPOSED WARD.
GOBEIL, Judge.
In this case, brothers James (“Jim”) and Merritt (“Sandy”) Dixon
(collectively, “Appellants”) appeal from the probate court’s final order appointing
their sister, Elizabeth (“Lysa”) Dixon McCullough as the guardian and conservator
for their mother, Janet Dixon (the “Ward”). On appeal, Appellants assert that the
probate court abused its discretion in appointing Lysa guardian, despite a statutory
preference for either Jim or Sandy. They also challenge the probate court’s admission
and consideration of illegally recorded video evidence. Because the record supports
the probate court’s decision in this case, we affirm.
The record here shows that the Ward, Janet Dixon, is a 95-year old woman with
advanced dementia.1 She has three adult children: Jim, Sandy, and Lysa. On June 17,
2025, Lysa filed a petition asking the probate court to appoint her as the Ward’s
emergency guardian and conservator. Jim objected to Lysa’s petition, and he filed his
own petition for permanent guardianship over the Ward. In these documents, Jim
explained that the Ward has lived in a residence located on his property since 2018.
Lysa moved into the Ward’s residence and served as her full time care giver from July
2024 until December 2024, when Jim hired a professional to take over the Ward’s
care. Jim described a volatile relationship between Lysa and the Ward’s new care giver
and admitted to calling law enforcement on his sister. At the time Lysa filed her
emergency motion for guardianship, Lysa had taken the Ward from her residence on
Jim’s property to another house nearby. Jim noted that the Ward had executed a series
of documents prior to her dementia diagnosis that named Jim as her preference for
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The parties all agree that the Ward lacks the capacity to make responsible
decisions for herself and requires a guardian.
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guardian and conservator.2 He admitted to having moved substantial amounts of the
Ward’s assets into trust as her attorney-in-fact under her power of attorney.
After a hearing, the probate court appointed Jim as the Ward’s emergency
guardian, finding that Jim was the preferred guardian under law based on the Ward’s
most recent nomination of him in her Advance Directive. The order noted “a
significant level of animosity and distrust existing between” Jim and Lysa. The order
stated that the Ward had returned to living on Jim’s property, and Jim had refused to
allow Lysa onto the property. The court explained that, as guardian, Jim no longer had
the right to prevent Lysa from seeing her mother and ordered him to allow Lysa to
speak with the Ward and visit her home. The court noted that it would “have little
tolerance” for the continued fighting between the siblings in front of their sick and
easily influenced mother. The court found no need to appoint an emergency
2
Indeed, in September 2023, the Ward executed a Georgia Advance Directive
for Health Care naming Jim as her healthcare agent, with Sandy as the backup agent.
She executed a Durable Power of Attorney naming Jim as her attorney-in-fact. She
executed an Amendment to her Revocable Trust, which named Jim as the sole trustee
of her trust, and Sandy and Lysa as successor trustees in that order. She also executed
a Codicil to her Will naming Jim as her executor and Sandy and Lysa as her successor
executors in that order.
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conservator, as the Ward had few assets outside of a substantial trust over which Jim
already had control under the power of attorney.
After this order issued, Jim amended his petition for permanent guardianship
and conservatorship, disclosing additional assets of the Ward’s that were not listed on
his original petition and explaining that he had moved these assets into a bank account
in only his name for a period “to prevent [Lysa] from taking these funds for her
personal use.” The court then vacated its emergency order, reappointed Jim as
emergency guardian, and appointed the County Administrator, Julianne Glisson, as
the Ward’s emergency conservator. Jim again amended his petition for permanent
guardianship and conservatorship to remove his request to serve as the Ward’s
permanent conservator, noting that he had no objection to either his brother Sandy or
Glisson serving as conservator.
The case proceeded to a final hearing, which occurred over three days in
September 2025. Numerous witnesses testified, including Jim, Sandy, and Lysa, as
well as other family members and friends of the family, and medical professionals. On
October 1, 2025, the probate court issued its final order appointing Lysa as the Ward’s
permanent guardian and conservator.
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The court first noted evidence of “significant changes in, even manipulations
of” the Ward’s assets by Jim during the course of the litigation. The court found that
Jim and Sandy concealed assets belonging to the Ward in Jim’s original petition for
guardianship, which had led the court to vacate its emergency order and appoint a
third-party as conservator. The court also found that Jim’s moving the bulk of the
Ward’s assets into trust shortly before the litigation to be “of concern,” and noted
inconsistencies in Jim’s testimony concerning his ability to read and understand the
legal documents granting him authority over the Ward’s affairs.
The court also found “disturbing” evidence that Jim prohibited Lysa from
visiting their mother, despite their mother’s desire to see Lysa. The court found that
“it was more important to Jim to control who could be on the property [at which the
Ward was living] than it was to avoid upsetting and further confusing their mother.”
The court discussed a recording made by the Ward’s friend Julie McIntosh (the
“McIntosh recording”). Appellants had objected to this recording being admitted at
the hearing as being made in violation of Georgia’s eavesdropping statute. The court,
however, admitted the evidence, and described it as “horrifying.” As described by the
probate court, the recording shows the Ward happy to see Lysa after being prevented
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from doing so by Jim for several weeks. Sandy then enters the room and has a
confrontation with his sister, with her falling to the floor. Although Sandy testified
that Lysa attacked him, which led to the confrontation, the court found his testimony
on this issue non-credible.
The court then concluded that good cause existed to disregard Jim’s statutory
preference to be appointed the Ward’s guardian, finding that he did not look out for
the Ward’s best interests while acting as emergency guardian. Specifically, the court
found that, while Jim was responsible for the Ward’s health and safety, she was
isolated from her friends and family. The court also found that “Jim’s lack of candor,
perhaps even his lack of honesty” in court filings and his testimony warranted
overriding his statutory preference. The court then found that it was in the Ward’s
best interest to appoint Lysa as permanent guardian. The court acknowledged that she
“is not the perfect choice, only the best one available,” as the court concluded that
she has the Ward’s best interest at heart and “is capable of putting whatever sibling
dysfunctions exist to make responsible decisions for their mother’s health and safety.”
The court also noted that the parties did not dispute the maintenance of Glisson
as the Ward’s conservator. To the extent Sandy enjoyed a statutory preference to be
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appointed conservator, the court found good cause to disregard such preference, as
it found that Sandy lacked the judgment to act in the Ward’s best interests.
Accordingly, Glisson was named permanent conservator. This appeal followed.
1. Appellants first assert that the probate court abused its discretion in
appointing Lysa as the Ward’s guardian over either of them.
Pursuant to OCGA § 29-4-1(a), a probate court may appoint a guardian for an
adult if it finds that “the adult lacks sufficient capacity to make or communicate
significant responsible decisions concerning his or her health or safety.”
This Court reviews a trial court’s order appointing a guardian over a
conservatorship under an abuse of discretion standard. We will not set
aside a probate court’s findings unless they are clearly erroneous, and
when such findings are supported by any evidence, they will be upheld
on appeal. The probate court’s application of the law, however, is subject
to de novo review.
In re Estate of Jenkins, 366 Ga. App. 628, 629 (883 SE2d 843) (2023) (citation
modified). Georgia law establishes a specific order of preferences for guardian
appointments. The court shall appoint as guardian the individual who will best serve
the interest of the adult, considering the statutory order of preferences. OCGA § 29-4-
3(a). The individual last nominated by the adult holds the highest preference. OCGA
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§ 29-4-3(b)(1). The probate court may disregard the list of statutory preferences only
upon good cause shown. OCGA § 29-4-3(a).
In this case, there is no question that Jim had statutory preference to be
appointed the Ward’s guardian, as he was the individual last nominated by the Ward.
OCGA § 29-4-3. And the court here provided its reasons for disregarding the
statutory preference in Jim’s favor, which we find to be supported by the record and
not clearly erroneous. On appeal, Appellants argue that Sandy also enjoyed a statutory
preference, as he was named as the Ward’s backup health care agent in her most
recently executed Advance Directive, and the probate court’s order failed to provide
the required statutory good-cause basis for disregarding Sandy’s statutory preference.
We discern no abuse of discretion.
The statute’s plain language explains that only one individual may hold the
statutory preference outlined in OCGA § 29-4-3(b)(1) — “the individual last
nominated by the adult.” See Jenkins, 366 Ga. App. at 630–31(1) (where wife of
proposed ward was named as health care agent in most recent advance directive, and
son of proposed ward was named as the backup health care agent, we considered
whether the probate court appropriately found good cause to disregard the statutory
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preference for the wife as the individual last nominated by the adult). In the Ward’s
case, that individual is Jim. As explained by the probate court, the conditions
precedent to Sandy serving as the Ward’s agent were not met, as Jim was able and
willing to serve as nominated. Thus, Appellants have failed to show that Sandy
enjoyed a statutory preference which probate court was required to state its good
cause for disregarding. And in any event, the court’s finding that Sandy does not
possess the “judgment to do what is best for the Ward if it inconveniences his
exhibited animosity towards his sister” provided good cause to disregard any statutory
preference he may have had. See id. (no abuse of discretion in disregarding statutory
preference where evidence supported the probate court’s finding that appointing
preferred guardian would not serve the ward’s best interest).
Appellants also take issue with several of the probate court’s factual findings.
However, these findings turn in large part on the probate court’s credibility
determinations, which we are not in a position to overturn on appeal. Jenkins, 366 Ga.
App. at 631(1) (probate court in guardianship determination is entitled to credit some
testimony and discredit other testimony). To the extent that they have support in the
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record, even if contested, we accept the court’s findings as supporting its decision. In
re Wheeler, 368 Ga. App. 1, 6(2) (889 SE2d 132) (2023).
For example, Jim contests the probate court’s finding that he isolated the Ward.
However, friends of the Ward testified that Jim restricted her phone access and
discouraged them from visiting and that Lysa was more helpful in facilitating their
communication with the Ward. Jim also contests the probate court’s characterization
of an incident where he called the police to remove Lysa from the Ward’s residence
as being indicative of his unsuitability to be guardian. However, the probate court
heard Jim’s version of events – that he called the police because he believed that
Lysa’s presence was harmful to the Ward – and it viewed body cam footage of the
incident. Accordingly, although Jim may disagree with the court’s characterization of
the incident, his argument that its finding does not contain support in the record is
meritless.
Accordingly, where the evidence supported the probate court’s decision, even
if disputed, we find no abuse of discretion. In re Holloway, 251 Ga. App. 892, 894–95
(555 SE2d 228) (2001) (affirming probate court’s appointment of county guardian
over the children of a ward because evidence supported the probate court’s findings
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that the children had all acted in ways that called their judgment into question,
including their disdain and mistrust of each other); In re Wheeler, 368 Ga. App. at 6(2)
(affirming probate court’s disregard of individual with statutory preference because
the evidence supported the probate court’s findings that the individual alienated the
ward from other family members).
Appellants also argue that the probate court failed to explain why appointing
Lysa was in the Ward’s best interest. We have held that even when a probate court
adequately explains its reasons for bypassing a petitioner with statutory preference,
its order may still be insufficient if it fails to “contain any findings or conclusions as
to [the appointed guardian’s] suitability to act as [the Ward’s] guardian.” Jenkins, 366
Ga. App. at 632(2). We have been explicit that the order must contain more than the
stated conclusion that the appointed guardian is the person who would best serve the
Ward’s interest, and an absence of actual findings may serve as the basis to vacate
such and order and remand for the probate court to “prepare appropriate findings of
fact to support its decision.” Id. at 633(2).
Here, we conclude that the probate court’s order includes sufficient findings
to support its appointment of Lysa as guardian. In addition to concluding that such an
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appointment was in the Ward’s best interest, the court also noted that Lysa “has the
Ward’s best interests at heart[,] and she is capable of putting aside whatever sibling
dysfunctions exist to make responsible decisions for their mother’s health and safety.”
In this case, the sibling disputes are at the heart of the issue the probate court was
tasked with deciding, and thus we conclude that the probate court’s finding
addressing this critical issue was sufficient to explain its decision. Accordingly, we
discern no abuse of discretion in the probate court’s choice of guardian in this case.
2. Appellants also argue that the probate court erroneously admitted the
McIntosh recording because it was obtained in violation of OCGA § 16-11-62, and was
therefore inadmissible under OCGA § 16-11-67.
We review evidentiary rulings from a probate court for abuse of discretion.
Dorsey v. Kennedy, 284 Ga. 464, 464(1) (668 SE2d 649) (2008). OCGA § 16-11-62(1)
makes it unlawful for any person “in a clandestine manner intentionally to overhear,
transmit, or record ... the private conversation of another which shall originate in any
private place.” OCGA § 16-11-62(2) makes it unlawful for any person, through the use
of any device, “without the consent of all persons observed,” to observe, photograph,
or record the activities of another which occur “in any private place and out of public
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view.” And OCGA § 16-11-67 provides that no evidence obtained in a manner which
violates OCGA § 16-11-62 shall be admissible in any court of this state except to prove
violations of the eavesdropping statutes.
As explained above, the probate court admitted this video over Appellants’
objection, finding that it was “not illegal” under OCGA § 16-11-62(2). Pretermitting
whether the probate court erred in admitting the video, we agree with Lysa that its
admission was not harmful such that reversal is warranted. See In re Wilson, 374 Ga.
App. 326, 328 (912 SE2d 354) (2025) (evidentiary error is only reversible error if
harmful). Sandy, Lysa, and McIntosh testified about this incident, with the probate
court finding Sandy’s testimony to be non-credible. The probate court would thus be
aware of this incident with or without the video and audio recording. Further, the
video was merely one of multiple reasons that the probate court found Jim and Sandy
to be unfit to serve as the Ward’s guardians, in addition to their suspicious behavior
towards the Ward’s assets and their other conflicts with Lysa. It is therefore not highly
probable that the admission of this evidence contributed to the probate court’s
decision. See id. (where there was substantial other evidence supporting probate
court’s decision, erroneous admission of evidence was harmless); In re Vincent, 240
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Ga. App. 876, 879–80(3) (525 SE2d 409) (1999) (where erroneously admitted
evidence is duplicative of other evidence, its admission is harmless). For all of these
reasons, we affirm the probate court’s order in this case.
Judgment affirmed. Dillard, P. J., and Pipkin, J., concur.
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