As you advance in age, it becomes increasingly important to have set plans for your property and healthcare in the event that you are unable to care for yourself or manage your own affairs.
But what happens if you don’t have a plan? Who decides how your assets and healthcare will be managed?
When an individual becomes incapacitated and has no appointed agent, a Guardianship or Conservatorship is often required.
How It Works
Guardians and Conservators are both appointed by the Probate Court. If the court deems a person incapacitated and unable to care for himself then the court will appoint a guardian and/or conservator to manage his affairs.
An incapacitated person is defined by Alabama law as someone who has one or more of the following ailments AND is unable to make responsible decisions about his healthcare or assets:
- Mental illness
- Mental deficiency
- Physical illness
- Physical disability
- Mental infirmities due to advanced age, drug use, or chronic intoxication.
It’s important to understand that not every person with a mental or physical ailment is considered incapacitated. The person must meet both criteria in order to necessitate the appointment of a guardian or conservator.
Guardian vs Conservator
While both deal with similar situations, Guardians and Conservators are not interchangeable.
Guardians deal directly with the physical person and are responsible for decisions regarding healthcare. If someone is appointed as guardian of a person (also known as the ward), the guardian has full legal authority to make any and all decisions regarding the person’s healthcare.
Conservators deal exclusively with financial assets. When appointed, a conservator assumes control of the incapacitated person’s property and finances. His responsibilities can include: maintenance and upkeep of property, selling property, managing investments, paying bills, and filing taxes.
More often than not, when a Guardianship is necessary, so is a Conservatorship, It’s not uncommon for a court to appoint one person to fill both roles. In some instances, though, it is desirable to appoint different people to serve these roles. In certain cases, the one best suited to care for a ward’s assets is not equally skilled in providing physical care or making healthcare decisions.
Appointing a Guardian or Conservator
Proceedings begin with the filing of a Petition for Letters of Guardianship and/or Conservatorship in the Probate Court.
After the petition has been filed, the court will issue a series of orders:
- An order to appointing a court representative.
- An order appointing a guardian ad litem (a lawyer appointed to represent the interests of the potential ward).
- An order setting the matter for hearing.
The goal of the Court in making its determination is to decide what is in the best interests of the ward. The Court will rely heavily on the recommendations of the court representative and the guardian ad litem. Their testimony given during the hearing will also be informative.
Following the hearing the Court will grant or deny the petition(s). In doing so, the Court has the option to limit powers of the Guardian and/or Conservator. In no event will a Court permit the property of the ward to be sold or transferred without Court approval.
Planning Ahead
Overall, Guardianships and Conservatorships are not the most desirable options. They are time consuming and expensive. When all other options have been exhausted, though, they can provide important stability for a ward and/or the family. Where time and circumstances do allow it is recommended that all adults execute a Durable Power of Attorney. A well-drafted power of attorney can often alleviate the necessity, time and hassle of a Guardianship or Conservatorship.
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