Guardianships and Conservatorhips
BACKGROUND. Thanks to a great increase in life
expectancy during the 20th century and continuing today, most of
us can expect many more years of productive life. The less attractive
side of this development is that we can also live to ages at which
we will experience some degree of disability. There are simple,
inexpensive ways to prepare for the possibility of needing help
with business matters and personal care, but unfortunately many
people reach the point of disability with no plan in place.
All states have some safety net available for those situations
in which no voluntary plans were made. The designated court may
appoint a "guardian of the person" and/or a "guardian
of the property". Different states have different terms for
the two functions. In Alabama appointment of someone to make personal
decisions and supervise living arrangements - the "guardian
of the person" - is termed "Guardianship". The process
of appointing someone to manage the property of an incapacitated
individual is "Conservatorship". Probate Courts usually
handle these actions in Alabama. The probate judge can appoint two
people to serve the different functions, or one person to serve
in both capacities.
WHO STARTS THE PROCESS? Usually these procedures
are initiated by someone close to the incapacitated person. If there
is no one to step forward and do so, however, the process can be
commenced by a report to the Department of Human Resources that
an individual is being neglected, abused or exploited. Pursuant
to the Adult Protective Services Act, DHR can investigate
and if court action appears to be warranted to prevent abuse, neglect
or exploitation of a vulnerable adult, DHR initiates the Guardianship
process. In those counties where there is a County Conservator,
that person is usally appointed, at least to manage the property.
The Adult Protective Services Act is codified at Alabama
Code § 38-9-1. This is not a commitment process;
in fact a person may not be committed to a mental institution as
a result of a protective petition. (The commitment process is only
used in those cases in which a person is "a danger to him/herself
or others" and the standards for commitment are stringent,
as they should be. The Involuntary Commitment Act is found
at Alabama Code § 26-52-1.)
PROBLEMS. There are many problemns associated
with Guardianships and Conservatorships. Alabama has judicial processes
that are good so far as they go, but the system is not perfect and
flaws in the law and procedure are complicated by lack of adequate
funding. Alabama is not unique in this. There are commissions and
study groups around the country studying the issues. The goal is
to develop better resources to deal with the anticipated large numbers
of people who will need protection. Until reform comes, those working
in the system are doing the best they can to protect the interests
of vulnerable persons who have been unwilling or unable to protect
APPOINTING ONE OR BOTH. Often when a persons
ability to take care of him/herself has reached the point that court
intervention is sought, it is necessary to appoint both a Guardian
and a Conservator. However, it is possible to appoint either a Conservator
or a Guardian without appointing the other, though some courts seem
reluctant to appoint only a Conservator. This may be out of a desire
to avoid future court proceedings and expense if the Wards
mental condition later deteriorates, as often happens.
Nonetheless, the standard for appointing a Guardian of the person,
which removes most of an individuals civil rights, is stricter
than the standards for appointing a Conservator for the estate of
someone who is having difficulty managing his/her business affairs.
It is fairly common for an older person to begin to have trouble
paying bills, keeping up with bank balances and so on, and yet be
capable of making personal decisions and directing his/her own care.
The goal of Protective Proceedings is to find the least restrictive
appointment possible that will protect the Ward but also encourage
the greatest level of independence under the circumstances. (Alabama
Code § 26-2A-136.)
LIMITED APPOINTMENTS. It is possible for a court
to appoint a Limited Guardian or Limited Conservator who is confined
to certain types of duties, in order to encourage the greatest independence
on the part of the Ward. This can be an option in those troubling
cases in which appointment of a Guardian is not appropriate at the
time a Conservator is appointed, yet it is likely that the Wards
mental capacity will deteriorate. A Limited Guardian might be authorized
to make medical and personal decisions to the extent that the Ward
has not made other provisions, such as executing an Advance Health
Care Directive. (A frail or impaired but still competent person
can make a will or execute a health care directive. That can be
true even after a Conservator is appointed, but not after appointment
of a Guardian, unless the appointment is limited. Such a possibility
should be carefully investigated and documented.)
TEMPORARY APPOINTMENTS. Another option is appointment
of a Temporary Guardian or Conservator, essentially to permit execution
of a single document or to participate in a single transaction.
A good example is temporary appointment of a Guardian to execute
a Qualified Income Trust for a Ward who has income over the state
Medicaid income cap, to allow him/her to qualify for financial assistance
with nursing home costs.
VOLUNTARY DECISIONS PREFERABLE. Although sometimes
necessary this process can be an expensive and cumbersome way to
deal with incapacity. It is far better for individuals to realize
the possibility of some period of disability, and if there is a
suitable person available, to appoint an agent under a Durable Power
of Attorney to provide for that increasingly common situation. Sometimes
situations develop that require court intervention even when an
agent has been appointed, but in most cases having a valid, well-drafted
Durable Power of Attorney and a competent, trustworthy agent can
avoid these proceedings.
Having a Guardian or Conservator appointed
can be a painful process for families.
A person judicially determined to be in
need of a guardian loses most of his/her
civil rights. Even if (s)he has become
unable to exercise many of those rights
it is still a serious matter to be legally
deprived of them.
STATUTES, FORMS, PROCEDURE. The relevant statutes
are found at Alabama Code § 26-2-1 et seq.; those especially
applicable to elderly persons begin at 26-2A-102. The sections on
appointment of a Conservator begin at 26-2A-130. Many probate courts
have forms they prefer, but if you do not have those, the Birmingham
Bar Association (205-251-8006) offers a complete set of probate
forms to attorneys and judges at modest cost. They can be adapted
to the preferences of other courts. A form is not a substitute for
consulting the law but can be a great convenience and a helpful
guide. Each BBA form directs the user to the appropriate statute(s).
(Be sure to review the statutes, as there have been a few changes
since the forms were developed. Also include the new appointments
Attorneys filing Peititions for either Guardianship or Conservatorship
or both should be aware of the Alabama Court of Civil Appeals decision
in a case out of Jefferson County: In Re the Conservatorship
of V.A.H. (CV-00-1775). As a result of that decision the Alabama
Probate Courts bow require, in addition to other statutory requirements,
that petitioners file the orginal and three copies of the petition;
provide a list of the alleged incapacitated person's assets with
Conservatorship Petitions; and provide the Court with the name and
address of a physician to be appointed to examine the alleged incapacitated
person and report to the Court. As in the past a Guardian-ad-Litem
(attorney to represent the alleged incapacitated person) is also
appointed. The costs of these protections are taxed as part of the
costs of court and must be paid before Letters will be issued.
PROCEDURE. The process is begun by an interested
- A Petition for Appointment of Guardian or Conservator or both.
(The petitioner does not necessarily apply to be appointed him/herself.)
See Alabama Code § 26-2A-103 and 26-2A-133(b).
- An Order Setting Date for Hearing, Directing Notice and Appointing
Guardian ad Litem, for completion by the probate clerk. This will
list the names and relationships of all who must be notified.
- A Petitioners Notice of Hearing must be prepared and
signed by the petitioner for personal service on the Ward and
each other person entitled to notice (unless a Waiver of Notice
is filed). Service may be by certified mail in most cases, but
not on the Ward. It speeds up the process and reduces costs if
those entitled to notice sign Waivers of Notice making service
by process server or certified mail unnecessary.
- The Probate Court appoints a Guardian ad Litem (guardian
"for this time")- usually an attorney - to represent
the person alleged to be incapacitated and only that person, and
also a physician to examine the allegedly incapacitate person
and give an opinion about whether (s)he believes appointing a
guardian or conservator is in the person's best interests.
- The Probate Court will set a date for hearing the Petition that
will allow time to make appointments and get reports back, and
for notice to be given to those entitled to it if Waivers have
not been filed for all of them.
If after a hearing the Court finds that
a protective appointment is appropriate,
it will issue an Order of Appointment
and Letters of Guardianship or Conservatorship
or both. If a Conservator is to be appointed
a bond must be obtained in the amount
specified by the court. There is no bond
for Guardians. There may be other requests
that need to be made at the hearing, such
as for sale of property, setting of a
monthly living allowance or authorization
for a specific expenditure, and so on.
RIGHTS OF THE ALLEGED INCAPACITATED PERSON. Nationwide
and in Alabama, too often there has been inadequate attention paid
to the rights of the allegedly incapacitated person. The attorney
appointed as Guardian ad Litem should at the very minimum visit
the client, make independent inquiry into the allegations of the
Petition, and prepare a written report to the Court before the hearing.
He or she should see that the Ward was served with notice and has
an opportunity to attend the hearing if able.
Periodically there are seminars on the duties of a G-A-L and there
are frequent articles in lay and professional publications. These
can be helpful in fulfilling the often difficult role of a G-A-L.
On one hand the G-A-L must vigorously defend the rights of a person
for whom legal protection is being sought; on the other, the G-A-L
is concerned about the Wards best interests which may
not be what the Ward would prefer. A strong advocacy position is
not always synonymous with a best interests position.
This is the inherent conflict troubling our own and other courts.
Concerns should be brought to the attention of the court, which
will make the final decision.
SPECIAL CONSIDERATIONS. It is often important
for those involved in protective proceedings for older persons to
understand Medicaid eligibility rules. Unless the Ward has extensive
resources or is not a candidate for nursing home care, the need
for assistance in paying for long term care may arise at some point.
Examining past activities regarding assets and understanding the
effects of asset transfers can be of critical importance in future
determination of a Wards eligibility for benefits. Previous
inappropriate transfers may need to be attacked in order for eligibility
to be established or preserved. Possible conflicts of interest between
Ward and Conservator must be considered, as well as the Conservators
sensitivity to conflicts and willingness to put the Wards
interests first when appropriate.
As the number of older persons increases
here and abroad, laws and practices regarding
protective proceedings are being reviewed
and revised. Current laws fall short of
providing perfect solutions, but even
with their shortcomings they offer a safety
net in those situations in which one is
THE INFORMATION PROVIDED HERE IS GENERAL AND CONDENSED.
IT IS NOT INTENDED TO BE AND SHOULD NOT BE REGARDED AS LEGAL ADVICE
IN A PARTICULAR SITUATION.