Conservator vs Guardian: Protecting Minors and Disabled Adults

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You may have heard the terms “conservatorship” and “guardianship” used somewhat interchangeably. While similar, there are important differences between these ideas. A court sometimes has to get involved to protect a minor child or an adult who has mental and cognitive deficiencies that limit his or her ability to carry on affairs without assistance.

 

Whether it is a child or a disabled adult, Alabama courts require the matter be resolved through a probate court. In some situations, the person merely needs someone to make healthcare decisions on his or her behalf. This is generally done through a power of attorney. Absent a valid power of attorney, a court may appoint a guardian. If the person’s financial assets and estate are in need of protection, the court may also appoint a conservator. The guardian and conservator can be the same person.

 

What Does a Guardian Do?

 

Under the Alabama Code 26-2A-108, a guardian is “responsible for health, support, education, or maintenance of the ward.” A “ward” is the individual that requires a guardian (can be a child or disabled and incapacitated adult). These are broad responsibilities and powers. However, the guardian is “not liable to third persons by reason of that responsibility for acts of the ward.” In other words, the guardian does not automatically become personally responsible for the ward’s debts or actions.

 

A guardian can (not an exhaustive list):

 

  • Make healthcare decisions
  • Select medical providers
  • Discuss medical care and obtain records
  • Handle health insurance matters

 

What Does a Conservator do?

 

A conservator, on the other hand, is in charge of the person’s estate. This means money, investments, bank accounts, and so forth. Not everyone will have an estate; therefore, the majority of disabled adults and young children will only require a guardianship. However, when there is money (or the potential receipt of money, such as through a lawsuit), then a court can appoint a person or corporation to manage the finances for a ward. This is called “conservatorship.”

 

According to Alabama Code 26-2A-152, a conservator has the power to do the following things on behalf of a ward. This list is not exhaustive:

 

  • Invest and reinvest funds on behalf of the ward
  • Act as fiduciary
  • Collect, hold, sell, and rent real property
  • Make reasonable repairs to real property
  • Manage bank accounts
  • Borrow money for limited purposes
  • Invest in stocks, bonds, and mutual funds
  • Access safe deposit boxes
  • Hire attorneys, accountants, and other helpful professionals
  • Pay bills

 

Who Should be a Guardian or Conservator?

 

Really anyone who meets the minimum requirements can act as a conservator under the law. Of course, Alabama provides a priority list of people who are presumed to be best suited for the role. First, there are those already appointed by the court (existing guardian would likely be given preference for conservatorship, unless there is a reason not to do so). Second, the law prefers anyone the protected person has self-chosen. For instance, a person may have designated a person or corporation to handle his or her affairs. Third, there are people with existing fiduciary duties under a power of attorney.

 

If none of the above exist, the court will begin looking at relatives in the following order:

 

  • Spouse
  • An adult child
  • Parent or someone nominated in the ward’s will
  • Any relative who has resided with the ward for at least six months
  • Someone who is caring for the general needs of the ward
  • A general guardian or Sheriff of the county where the ward resides

 

How to Become a Guardian or Conservator in Alabama

 

If you have a loved one in need of a guardian or conservator, you will likely need to petition a court for appointment. There are a lot of protective rules and restrictions in place, and the court’s primary goal will be to look upon the entire process skeptically in order to protect the disabled adult or child. It is absolutely imperative that you have competent and experienced legal representation throughout the process.

 

To discuss your case with an experienced attorney who understands Alabama probate law, contact Five Points Law Group in Birmingham.

Kristin Waters Sullivan
Kristin Waters Sullivan
As a partner at the Five Points Law Group, Kristin brings her vast experience in Estate Planning and Probate Law to serve her clients’ and their families’ needs.

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