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Summer of 2023 officially has 94 days. Fifty-eight of those days have passed; only forty-six are left. Summer will officially end on September 23. Have you recently heard anyone mention that it is hot? In Alabama, especially in August, it seems many conversations start with a comment about the hot weather.
To date, this August had eleven days above the average of 92 degrees Fahrenheit. It is predicted we will have another eleven days above the average by the end of the month. We can safely say, here, this August has been hot. However, it is predicted that September will bring some much-wanted cooler days – or at least more days below 90 degrees. That will be a welcome and much anticipated relief.
What does this have to do with the Probate Court, you may ask. Well, the weather cycles. So do the topics that arise in the probate office. Recently we’ve received many inquiries concerning guardianships and/or conservatorships of others. Some are people concerned about a relative or a friend while others are attempts to obtain necessary paperwork to enroll children in school.
We are often asked to “do a letter for me to be a guardian for my mother/father so I can help them with their medical needs and/or finances.” We are also asked to issue letters stating that someone has temporary custody or guardianship of minor children so the children can be enrolled in a local school.
First, that is not how the process works. The probate judge cannot simply write a letter because someone asks for it. He/she certainly cannot order guardianship or conservatorship without proper court filings and the holding of proper hearings upon which to base the ruling.
Often, guardianship or conservatorship is not needed. In many circumstances, the people seeking the letter may obtain the authority needed by obtaining a power of attorney from the person for whom authority is being sought.
However, if the person over which the authority is sought is an adult with greatly diminished mental capacity, that person may not have the ability to legally grant a power of attorney. In that case, a petition must be properly filed and a hearing held to determine if guardianship, conservatorship, or both should be granted.
Let’s take a brief look at some of the legal terms associated with responsibility and authority over another person.
An Incapacitated Person is one who is impaired by reason of mental illness or deficiency; physical illness or disability; or physical or mental infirmities. These physical or mental infirmities often accompany advanced age, chronic use of drugs or alcohol, or other reasons (except minority) causing the person to lack understanding or capacity to make or communicate responsible decisions.
A Protected Person is a minor or other person for whom a conservator has been appointed.
A Guardian is a person appointed the responsibility for the care of a minor or an incapacitated adult. The guardian is basically responsible for the health, support, education, and/or maintenance of the protected person. A guardian normally serves without bond and is not normally required to provide an inventory of the protected person’s assets. However, if the protected person or ward is a minor the guardian will be required to report, as directed by the court, on the condition of the ward and the ward’s estate over which the guardian has control.
A Conservator is a person appointed to manage the estate (property, financial affairs, business affairs, etc.) of a minor or incapacitated adult. A conservator must post a bond and is required to provide an inventory and accounting of the protected person’s assets. The bond amount is determined by the Court based upon Alabama law and the value of the estate.
A Guardian and Conservator is a person appointed to perform both functions. A person appointed as a guardian and conservator must post the proper bond and file an inventory of the incapacitated/protected person’s assets.
For either proceeding, the adult person who is to be protected can initiate the proceedings by filing a proper petition. For guardianship proceedings, any person interested in the welfare of the person to be protected may initiate the proceeding. For conservatorship proceedings, any person interested in the estate, affairs, or welfare of the person to be protected may initiate the proceeding.
If the petition is for guardianship, it is filed in the Probate Court of the county where the alleged incapacitated person resides or is present at the time the proceedings begin. If the petition is for conservatorship, the petition must be filed in the county where the alleged incapacitated person resides, regardless of whether a guardian has been appointed in another county.
After the proper filing of the petition, a hearing will be set and held to determine the proper course of action to be taken. Based upon the evidence presented and the sworn testimony given, the court will enter a ruling on the petition. The ruling may be the appointment of a guardian, a conservator, a guardian and conservator, a temporary guardian and/or conservator, or denial of the petition. Each case is different, and the judge must weigh the facts against the requirements listed in the applicable code section(s).
Accepting the responsibility for another person is a huge undertaking and places great responsibility on the shoulders of the provider. It is a duty that should never be taken lightly. The guardian or conservator should keep accurate records of actions taken on behalf of the protected person. While some records may not be required, they could be an invaluable asset for the guardian or conservator in possible future court hearings or if there is a challenge to actions taken or funds expended.
Finally, regardless of how many letters or notes a person brings to the probate office, the Probate Court does not write letters stating that custody of a person has been granted to anyone. If the Probate Court is awarding authority to someone for another person, it will only be accomplished after proper hearings are held, testimony received, and in the form of a court order.
This is a very basic and brief look at guardianships and/or conservatorships. The information presented is meant to inform and not to advise. No person should ever apply or interpret any law without the aid of an attorney who analyzes the facts of the case, because the facts of each case may differ and have great bearing on the application of law. Until next month, stay safe and try to stay cool!