Conservatorship / Guardianship

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In January 1988, the new Alabama Uniform Guardianship and Protective Proceedings Act placed the responsibility of care for the person under the guardianship provisions, the responsibility for the care of the person’s finances and property under the conservator’s provisions. Guardianships appointed prior to January 1, 1988 have all the powers as guardians and conservators under the new law.

 

What is a conservator?

A person who is appointed by the court to manage the property of a minor or incapacitated person

 

Who is an incapacitated person?

A person who is unable to manage property and business affairs because of….

  • Mental illness
  • Mental deficiency
  • Physical illness
  • Infirmities accompanying advanced age
  • Chronic use of drugs
  • Chronic intoxication
  • Confinement
  • Detention by foreign power
  • Disappearance

Who can serve as a conservator?

A family member or any interested person with the priorities as follows:

  1. Conservator appointed in another jurisdiction
  2. Person selected by incapacitated person
  3. Person designated by incapacitated person’s power of attorney
  4. Spouse
  5. Adult child
  6. Parent
  7. Relative with whom ward has lived last six months
  8. Nominee of person caring for incapacitated person
  9. General guardian of sheriff

When can a conservator be appointed?

A conservator may be appointed when an incapacitated person:
Is unable to manage property and business affairs; and
(a) Has property that will be wasted without proper management; or
(b) funds are needed to support the incapacitated person or one entitled support from the incapacitated person.

What are the powers or duties of a conservator?

Without court authorization the conservator may:

  1. Invest and reinvest funds
  2. Retain assets
  3. Receive additions
  4. Acquire undivided interest
  5. Deposit funds in financial institutions
  6. Acquire property
  7. Dispose of personal property
  8. Make repairs to building
  9. Enter leases up to 5 years
  10. Enter mineral leases
  11. Grant options up to one year
  12. Vote securities
  13. Pay assessments
  14. Sell or exercise stock options
  15. Deposit stock and bonds
  16. Consent to reorganization, merger of a business
  17. Insure assets
  18. Borrow to protect estate
  19. Settle claims
  20. Pay reasonable annual compensation to conservator
  21. Pay taxes and expenses
  22. Allocate expenses to income
  23. Pay sum of benefit of protected person or his family
  24. Employ attorneys, auditors
  25. Prosecute or defend claims
  26. Execute and deliver appropriate instruments
  27. Hold securities
    [Court may limit powers of conservator]

With prior court authorization the conservator may:

  1. Continue or participate in operating business
  2. Demolish improvements
  3. Dispose of real estate
  4. Subdivide, dedicate land
  5. Leases greater than 5 years
  6. Grant an option more than one year
  7. Take an option to acquire property

Am I required to have a lawyer?

The legal complexity of guardianships and conservatorship normally necessitates having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

What is the difference between a guardian and a conservator?

The guardian looks after the person and their welfare while a conservator looks after their estate.

What are the steps followed in appointing a guardian or conservator for an adult?

  1. Petition files
  2. Appointment of a guardian ad litem
  3. Examination by physician
  4. Appointment of court’s representative hearing
  5. Jury at hearing if demanded
  6. Bond for conservator
  7. Order granting petition
  8. Letters of guardianship and/or conservatorship

Is a bond required?

Yes, a bond is required for conservatorship unless the bond requirement was waived in a Will of power of attorney.

Is an inventory required?

Each conservator must complete an inventory of the estate immediately and file it with the court within 90 days after appointment.

Are accountings required?

Yes, a conservator must give an accounting to the court at least every three years. The court may order an accounting more frequently. An accounting is also required upon the resignation or removal of the conservator.

What is a guardian?

The parent of a minor or someone who has been appointed by the court to be responsible for the personal care of an individual.

What is a ward?

Legal name for a person for whom a guardian has been appointed

Who can be a guardian for an adult?

Any qualified person may be appointed. However, the law establishes the following priorities:

  1. Person named in a durable power of attorney
  2. Spouse or spouse’s nominee
  3. Adult child parent or parent’s nominee
  4. Relative with whom person has lived the prior 6 months
  5. Nominee of caretaker of person

Who can be a guardian for a child?

The court may appoint any person who will be in the best interest of the minor. However, if the minor is 14 years old or older, the minor’s nominee must be appointed unless the appointment is contrary to the minor’s best interest.

Also, a parental nomination has priority.

Can a parent appoint a guardian?

Yes, in a Will a parent may appoint a guardian for a minor child of for an unmarried incapacitated child.

Can a spouse appoint a guardian?

Yes, in a Will a person may appoint a guardian for his or her incapacitated spouse.

What are the powers of a guardian?

  • Must assume responsibilities of a parent regarding support, care and education
  • Must become personally acquainted with ward
  • Must take reasonable care of ward’s personal effects
  • Must apply available money for current needs or health, support, education and maintenance
  • Must conserve excess money
  • Must report the condition of the ward to the court
  • May receive limited funds for support of ward
  • May take custody of ward and establish a home
  • May compel payment of support
  • May consent to medical care
  • May consent to marriage or adoption
  • May delegate certain responsibilities to the ward for the decision making
    [Court may limit powers of guardianship]

When does a guardianship end?

  • Upon death of ward
  • Upon resignation of the guardian
  • Upon adoption of the minor
  • Upon marriage of the minor
  • Upon minor becoming an adult
  • When ward’s incapacity is terminated

This information, which is based on Alabama law, is only to inform and not to advise. No person should never apply or interpret any law without the aid of a lawyer who analyzes the facts, because the facts may change the application of the law.

Prepared by the Alabama Law Institute for the Alabama Probate Judges’ Association