Phone: 334-566-1246

Conservatorships &
Guardianships

FREQUENTLY ASKED QUESTIONS REGARDING CONSERVATORSHIPS & GUARDIANSHIPS: WHAT IS A CONSERVATOR? WHO IS AN INCAPACITATED PERSON? WHO CAN SERVE AS A CONSERVATOR? WHEN CAN A CONSERVATOR BE APPOINTED? WHAT ARE THE POWERS AND DUTIES OF A CONSERVATOR? AM I REQUIRED TO HAVE A LAWYER? WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR? WHAT ARE THE STEPS FOLLOWED IN APPOINTING A GUARDIAN OR CONSERVATOR FOR AN ADULT? IS A BOND REQUIRED? IS AN INVENTORY REQUIRED? ARE ACCOUNTINGS REQUIRED? WHAT IS A GUARDIAN? WHAT IS A WARD? WHO CAN BE A GUARDIAN FOR AN ADULT? CAN A PARENT APPOINT A GUARDIAN? CAN A SPOUSE APPOINT A GUARDIAN? WHAT ARE THE POWERS OF A GUARDIAN? WHEN DOES A GUARDIANSHIP END?   WHAT IS A CONSERVATOR? A person who is appointed by the court to manage the property of a minor or incapacitated person. > RETURN TO TOP OF PAGE < 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 > RETURN TO TOP OF PAGE < WHO CAN SERVE AS A CONSERVATOR? A family member or any interested person with the priorities as follows: conservator appointed in another jurisdiction person selected by incapacitated person person designated by incapacitated person's power of attorney spouse adult child parent relative with whom ward has lived last six months nominee of person caring for incapacitated person general guardian of sheriff > RETURN TO TOP OF PAGE < 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 to support from the incapacitated person. > RETURN TO TOP OF PAGE < WHAT ARE THE POWERS AND DUTIES OF A CONSERVATOR? Without court authorization the conservator may: invest and reinvest funds retain assets receive additions acquire undivided interest deposit funds in financial institutions acquire property dispose of personal property make repairs to building enter leases up to 5 years enter mineral leases grant options up to one year vote securities pay assessments sell or exercise stock options deposit stock and bonds consent to reorganization, merger of a business insure assets borrow to protect estate settle claims pay reasonable annual compensation to conservator pay taxes and expenses allocate expenses to income pay sum of benefit of protected person or his family employ attorneys, auditors prosecute or defend claims execute and deliver appropriate instruments hold securities [court may limit powers of conservator] With prior court authorization the conservator may: continue or participate in operating business demolish improvements dispose of real estate subdivide, dedicate land leases greater than 5 years grant an option more than one year take an option to acquire property > RETURN TO TOP OF PAGE < 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. > RETURN TO TOP OF PAGE < 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. > RETURN TO TOP OF PAGE < WHAT ARE THE STEPS FOLLOWED IN APPOINTING A GUARDIAN OR CONSERVATOR FOR AN ADULT? petition filed appointment of a guardian ad litem examination by physician appointment of court's representative hearing jury at hearing if demanded bond for conservator order granting petition Inventory of property for conservator letters of guardianship and/or conservatorship > RETURN TO TOP OF PAGE < IS A BOND REQUIRED? Yes, a bond is required for conservatorship unless the bond requirement was waived in a Will of power of attorney. > RETURN TO TOP OF PAGE < 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. > RETURN TO TOP OF PAGE < 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. > RETURN TO TOP OF PAGE < 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. > RETURN TO TOP OF PAGE < WHAT IS A WARD? Legal name for a person for whom a guardian has been appointed. > RETURN TO TOP OF PAGE < WHO CAN BE A GUARDIAN FOR AN ADULT? Any qualified person may be appointed. However, the law establishes the following priorities: person named in a durable power of attorney spouse or spouse's nominee adult child parent of parent's nominee relative with whom person has lived the prior 6 months ominee of caretaker of person > RETURN TO TOP OF PAGE < 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. > RETURN TO TOP OF PAGE < CAN A PARENT APPOINT A GUARDIAN? Yes, in a Will a parent may appoint a guardian for a minor child or for an unmarried incapacitated child. > RETURN TO TOP OF PAGE < CAN A SPOUSE APPOINT A GUARDIAN? Yes, in a Will a person may appoint a guardian for his or her incapacitated spouse. > RETURN TO TOP OF PAGE < WHAT ARE THE POWERS OF A GUARDIAN? must assume responsibilities of a parent regarding support, care and education must become personally acquainted with ward/div> 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] > RETURN TO TOP OF PAGE < 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 > RETURN TO TOP OF PAGE <

THIS INFORMATION, WHICH IS BASED ON ALABAMA LAW, IS ONLY TO INFORM AND NOT TO ADVISE. NO PERSON SHOULD EVER 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

 

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