Guardianships, conservatorships process

PROTECTED CONTENT

If you’re a current subscriber, log in below. If you would like to subscribe, please click the subscribe tab above.

Username

Password

Login

Lost your password?

Username and Password Help

Please enter your email and we will send you a password reset link.

Email

Submit

← Back

 

This year is passing even faster than previous years. Because there were no Coosa County elections this year, I was hoping the year would pass a little slower. That isn’t happening.

Memorial Day is just around the corner. Memorial Day begins what the Department of Defense calls the “101 Critical Days of Summer,” the days between Memorial Day and Labor Day (an average depending upon when Memorial Day and Labor Day occur).

The 101 Critical Days of Summer is a risk management messaging program aimed at making people aware of the increased dangers of activities during the summer months. So named because following winter (especially for those personnel stationed in freezing climates like Minot, North Dakota), the summer weather causes people to be more active in outdoor sports and activities and often results in people being more careless. Activities such as vacation travel, water sports, hiking, etc. are fun activities that present much more danger than staying inside during the winter.

According to the National Safety Council, fatalities related to motor vehicle accidents, water sports, heat-related incidents, etc. all increase significantly during the summer months. We need to be aware of the increased dangers in our activities, take proper precautions and put safety foremost in our minds. Because of Coosa County’s lakes, streams and abundance of outdoor activities, we need to remind ourselves and others to be safety aware. It doesn’t hurt to even have a safety briefing/review with family members and friends before engaging in summer activities just to remind everyone of the dangers and to be safe. Every year, according to the Air Force Safety Program reports, most summer fatalities are preventable and an unnecessary loss of life.

Now to follow-on from last month’s column: Guardian and Conservatorship. There are many reasons why someone may need to have a Guardian and/or Conservator appointed. I will address those reasons, but first a refresher.

A Guardian is a person appointed to be responsible for the health, support, education, or maintenance of a protected person; either an adult or minor.

A Conservator is a person appointed to manage the estate (property, finances, business affairs, etc.) of a protected person; an adult or minor.

A Guardian and Conservator is a person appointed to take care of most everything for the protected person.

For either proceeding, the person who is to be protected can initiate the proceedings. In addition, for a Guardianship proceeding any person interested in the welfare of the person to be protected can initiate the proceeding. For a Conservatorship, any person interested in the estate, affairs, or welfare of the person to be protected can initiate the proceeding.

Proceedings for Guardianship or Conservatorship begin in the Probate Court. If the petition is for guardianship, it is filed in the Probate Court where the alleged incapacitated person resides or is present at the time the proceedings commence. If the petition is for a conservatorship, the petition must be filed in the Probate Court where the alleged incapacitated person resides, regardless of whether a guardian has been appointed in another place. After the proper filings, the case may be transferred or removed to Circuit Court if necessary.

Following the proper filing of the petition in Probate Court, a hearing will be set and conducted to determine the proper course of action to be taken. Based upon the evidence presented and 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, a temporary Conservator, or denial of the petition. Each case is different, and the judge weighs the facts presented against the requirements listed in the applicable Alabama Code section(s).

If the judge finds that appointing a Guardian is the best course of action, the judge must consider who is eligible to serve and who is qualified to serve. The Guardian may be any qualified person including the protected person’s most recent nomination in a durable power of attorney. However, the person who has the power of attorney may not be qualified for some reason or may be unwilling to serve.

If there is no nomination to be Guardian or no one is willing to be appointed, priority to appointment is as follows:

1. The spouse or person nominated by the will of the deceased spouse,
2. An adult child of incapacitated person,
3. A parent or person nominated by will of a deceased parent,
4. Any relative with whom the incapacitated person has resided for more than six months prior to the filing of the petition, or
5. A person nominated by the person caring for or paying for the care of the protected person.

On the other hand, there are some additional considerations when appointing a Conservator. First, the person appointed as a Conservator must be able to obtain a proper bond. The Conservator can be any person or corporation with general power to serve as a trustee or conservator.

If there is no one meeting these requirements, priority is given as follows:

1. A conservator, guardian of property, or like fiduciary appointed by an appropriate court,
2. An individual or corporation nominated by the protected person who is 14 years old or older and of sufficient mental capacity to make an intelligent choice,
3. An attorney-in-fact under a valid durable power of attorney with broad powers,
4. A spouse or person nominated by the will of deceased spouse,
5. An Adult child of incapacitated person,
6. A parent or person nominated by will of a deceased parent,
7. Any relative with whom the incapacitated person has resided for more than six months prior to the filing of the petition,
8. A person nominated by the person caring for or paying for the care of the protected person, or
9. A general guardian or sheriff for the county where the proceedings are held. This is a last resort, but if no one else is willing or fit, a general guardian or the sheriff must be appointed.

This is a brief look at the guardianship and/or conservatorship filing and appointment process. If you have a family member who needs assistance, I encourage you to consider stepping forward as the need arises.

As always, the information presented is meant to inform, not to advise. No one should apply or interpret any law without the aid of an attorney who analyzes the facts. The facts may differ with each case and may change the application of the law.

Until next month, enjoy your Memorial Day! There are many volunteer fire departments having fundraisers and events for their departments to enable them to support us. I ask you to please support them in their activities by making a monetary donation or providing some of your time.

Every department needs volunteers for positions from serving on their boards of directors, to firefighting, to medical response, to administrative services. We ALL depend on them. Support them, be safety aware, and make sure those around you are safe, as well!