What is a Guardianship and what is a Guardian?
In Alabama, a Guardian is a person who has been appointed by the Probate Court to manage and handle the personal welfare decisions, health care decisions, and lifestyle decisions for an incapacitated person or minor. A person can be declared incapacitated by the Probate Court due to dementia, mental infirmities, or if they are under the age of 19.
Who is eligible to be a Guardian for a minor child?
Generally, a guardian is not required of a minor when there are living and custodial parents because parents are empowered by the law to make lifestyle, health care, and welfare decisions for their children. If a guardian is required, however, the court may appoint any person whose appointment would be in the best interest of the minor. The court also can appoint a person nominated by the minor, if the minor is over the age of 14, and assuming the nominated individual is not contrary to the minor’s best interest. Additionally, the parent of a minor may appoint a guardian by a will or other writing, signed by the parent and witnessed by at least two witnesses.
Who is eligible to be a Guardian for an incapacitated adult?
The laws of Alabama allow any qualified person to be appointed as the guardian over an adult who has been declared incapacitated. The Code of Alabama, §26-2A-104 does establish priorities for who shall be appointed. That statute states the priority as:
1. Any person nominated in the incapacitated person’s most recent durable power of attorney.
2. The spouse of the incapacitated person or a person nominated by the spouse.
3. A parent of the incapacitated person or a person nominated by the parent.
4. A relative of the incapacitated person, provided they have lived with the incapacitated person for more than six months.
5. Any person nominated by an individual who is caring for or paying for the care of the incapacitated person.
What are the powers and duties of a Guardian?
Once an individual is appointed Guardian over either a minor or an incapacitated adult, the Guardian then has powers and duties which include:
1. A Guardian of a minor ward has the same powers and responsibilities that a parent would have when it comes to the minor’s support, health, care, education or maintenance.
2. The Guardian must become or remain personally acquainted with the ward and maintain contact with the ward
3. The Guardian must take care of the personal effects of the ward and perhaps commence proceedings, if necessary, to protect the property of the ward.
4. The Guardian must use the ward’s money for the ward’s current needs for support, health, care, education, and maintenance.
5. The Guardian must conserve any of the excess money of the ward’s for their future needs.
6. The Guardian must report to the Court the condition of the ward as often as the Court may order.
7. The Guardian may also receive money for the support of the ward, establish a home for the ward, consent to medical care, treatment, or advice, consent to the marriage or adoption of the ward, and may be entitled to compensation for their services.
See Code of Alabama §26-2A-78 and §26-2A-104
What is a conservator?
A Conservator is a person who is appointed by the court to manage an incapacitated person’s estate. In other words, the Conservator is a person who, among other things, manages a person’s financial well being including making decisions concerning the investment of assets; the payment of bills and expenses; the arrangement for the incapacitated person concerning room and board; the sale, purchase, or rental of property; the execution of contracts and agreements; and the voting of stock.
Who is eligible to be a Conservator for a minor child or for an incapacitated adult?
Unlike a guardianship over a minor child, it is not uncommon for a minor child to need a conservator because, in Alabama, not even a parent has the legal authority to manage money or property of their children in most cases.
Similarly to a guardianship, the laws of the State of Alabama give priorities in who may serve in the role of Conservator:
1. A conservator, guardian of property, or other like fiduciary recognized by a court in another jurisdiction.
2. An individual or corporation nominated by the incapacitated person or minor who is at least 14 years of age and has sufficient mental capacity to make an intelligent choice.
3. A person appointed under a valid durable power of attorney.
4. The spouse of the protected person or a person nominated by the will of a deceased spouse.
5. An adult child of the protected person.
6. A parent of the protected person.
7. A relative of the protected person who has resided with the person for at least six months.
8. A person nominated by a person who is caring for or paying benefits to the protected person.
9. A county conservator or like individual.
See Code of Alabama §26-2A-138.
Navigating the court system can always be a challenge and that is no different in cases of guardianship or conservatorship. If you have questions concerning guardianships or conservatorships, feel free to contact our experienced Alabama Guardianship and Conservatorship attorneys. Email us or call us toll free at 1-800-255-6534.
For more information about the Guardianship process in Alabama, please visit Alabama Guardianship Association (AGA).