Guardianships & Conservatorships

Serving Scottsboro and Jackson County

A guardian has responsibility for the person’s health, support, education, and maintenance. A conservator is responsible for the person’s money and property.

GUARDIAN

Any qualified person may be appointed guardian of an incapacitated person. Unless lack of qualification or other good cause dictates the contrary, the court shall appoint a guardian in accordance with the incapacitated person’s most recent nomination in a durable power of attorney. ALA. CODE § 26-2A-104. The following are persons who are entitled to consideration for appointment: (1) a spouse of the incapacitated person, (2) an adult child of the incapacitated person, (3) a parent of the incapacitated person, (4) any relative of the incapacitated person, and (5) a person nominated by the person who is caring for or paying for the care of the incapacitated person. 

CONSERVATOR

The court may appoint an individual or a corporation with general power to serve as trustee or conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed: (1) A conservator, guardian of property, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the protected person resides; (2) An individual or corporation nominated by the protected person who is 14 or more years of age and of sufficient mental capacity to make an intelligent choice; (3) An attorney-in-fact under a valid durable power of attorney previously executed by the protected person; (4) The spouse of the protected person, or a person nominated by the will of a deceased spouse to whom the protected person was married at the decedent’s death and the protected person has not remarried; (5) An adult child of the protected person; (6) A parent of the protected person, or a person nominated by the will of a deceased parent; (7) Any relative of the protected person who has resided with the protected person for more than six months before the filing of the petition; (8) A person nominated by one who is caring for or paying benefits to the protected person; and (9) A general guardian or sheriff for the county who must be appointed and act as conservator when no other fit person applies for appointment and qualifies. ALA. CODE § 26-2A-138. 

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

Who can serve as a conservator?

A family member or any interested person with the priorities as follows:

1. Conservator appointed in another jurisdiction
2. Person selected by incapacitated person
3. Person designated by incapacitated person’s power of attorney
4. Spouse
5. Adult child
6. Parent
7. Relative with whom ward has lived last six months
8. Nominee of person caring for incapacitated person
9. General guardian of sheriff

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 support from the incapacitated person.

GUARDIAN DUTIES & POWERS

A guardian of an incapacitated person is responsible for health, support, education, or maintenance of the protected person/ward, but is not liable to third persons by reason of that responsibility for acts of the ward. ALA. CODE § 26-2A-108. A guardian shall do the following:

• Become (or remain) personally acquainted with the protected person to know of their capacities, needs, limitations, etc.
• Take reasonable care of the protected person’s personal effects
• Apply any money of the ward to the protected person’s current needs for health, support, education or maintenance
• Conserve any excess money of the protected person for their future needs

CONSERVATOR DUTIES & POWERS

A conservator must observe the standards in dealing with the estate of the protected person that would be observed by a prudent person dealing with the property of another, and if the conservator has special skills or is appointed conservator on the basis of representations of special skills or expertise, the conservator is under a duty to use those skills. ALA. CODE § 26-2A-145. Conservators must keep suitable records of their administration of the protected person’s estate, including a complete inventory of the estate withing ninety (90) days of their appointment as conservator. ALA. CODE § 26-2A-146. Some of the powers a conservator has include the ability to:

• Enter leases up to five (5) years
• Pay/Contest/Settle claims
• Pay taxes and expenses
• Hold Securities
• Dispose of personal property/ Acquire property
• Collect/Hold/Retain assets
• Invest and Reinvest funds

Experienced attorney for guardianships and conservatorships in Scottsboro and Jackson County

For help with guardianships and conservatorships, call DUNSMORE & BENSON at 256-574-9999 to schedule your free consultation.