Conservatorships and Guardianships

People who are unable to care for themselves or make decisions for themselves often require a court-appointed conservator and/or guardian to handle their affairs. Alabama law provides two basic options – conservatorships and guardianships.

Who Needs A Guardian Or Conservator?

Generally, there are two types of people who need conservators and guardians – minors and those with mental or cognitive impairments who a court determines to be incapacitated or legally incompetent.  The following a few examples of situations that may require a conservator or guardian:

  • Mental illness
  • Dementia / Alzheimer’s disease
  • Severe physical impairment or disability
  • Chronic drug or alcohol abuse
  • Incarceration
  • Minors (under limited circumstances)
Conservator Or Guardian?

A conservator is someone who makes financial decisions for an incapacitated person. This may include handling bills, bank accounts, selling property, filing taxes, or taking care of just about any other financial matter.

A guardian, on the other hand, is someone who takes care of the personal affairs of the incapacitated person. This may include making healthcare decisions, end-of-life decisions, choosing caregivers, or even determining the proper living arrangements to provide for the person’s care.

How A Conservator Or Guardian Is Appointed

In Alabama, a probate court will supervise the process of determining whether such an appointment is necessary. Whether a conservatorship or guardianship (or both) is needed, the court will require that strict legal formalities are met. It is a complex process with a lot of considerations. After all, in most cases, the person seeking appointment (called a “petitioner”) is asking the court to give them the right to take over the disabled person’s (called the “ward”) decision-making. This is a big deal, so a judge will carefully weigh the needs against the potential harms.

The process starts when the person seeking appointment files an initial petition. Then, the petition must be served on the incapacitated person, putting him or her on notice of the proceeding. The court may often appoint someone called a guardian ad litem. This individual serves as a neutral party who will offer observations and advice to the court. This is done to protect the ward. Depending on the complexity and value of the ward’s estate, the process can be quite involved. 

Who Can Be Appointed?

Not just anyone is allowed to be a conservator or guardian over a minor or incapacitated adult. In fact, Alabama law provides a hierarchy of those who are qualified.

For a conservator, the following may apply (in this order):

  • A conservator already appointed in a different jurisdiction
  • Someone the incapacitated individual has selected or nominated (often in a power of attorney)
  • The incapacitated person’s spouse
  • An adult child
  • A parent
  • Any relative who has lived with the “ward” for the past six months
  • Someone that has been nominated by the person who has been caring for the ward
  • General guardian of the Sheriff in the county were the ward resides

For a guardian, the following may apply (in this order):

  • Whomever the ward named in a power of attorney
  • A spouse or someone nominated by a spouse
  • Adult children
  • A parent or someone nominated by a parent
  • Any relative living with the ward for the last six months
  • Someone nominated by the ward’s caregiver
Experienced Birmingham Guardianship And Conservatorship Attorneys

If you have a loved one with diminished mental capacity or need to provide care for a minor other than your own child, you may need a guardianship or conservatorship. While the process is meant to be straightforward and simple, it is actually quite complex. Contact an experienced local guardianship and conservatorship attorney in Birmingham who can help you navigate probate court and help your loved ones when they need it most. Call Five Points Law Group to learn more or to schedule a time to discuss your situation with an attorney. 

Burton Dunn

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Estate Planning & Probate Law

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Kristin Waters Sullivan

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