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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 themselves.

APPOINTING ONE OR BOTH. Often when a person’s 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 Ward’s mental condition later deteriorates, as often happens.

Nonetheless, the standard for appointing a Guardian of the person, which removes most of an individual’s 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 Ward’s 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 mentioned below.)

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 person” filing:

  1. 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).
  2. 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.
  3. A Petitioner’s 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.
  4. 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.
  5. 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 Ward’s 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 Ward’s 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 Conservator’s sensitivity to conflicts and willingness to put the Ward’s 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 needed.


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