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Guardianship vs. Conservatorship

In Alabama, a Guardian is a person who has been appointed by the Probate Court to manage and handle the personal welfare decisions, health care decisions, and lifestyle decisions for an incapacitated person or minor. They are essentially over the “person.” They may be able to decide placement and living arrangements and end of life concerns and decisions. A person can be declared incapacitated by the Probate Court due to dementia, mental infirmities, or if they are under the age of 19.

The laws of Alabama allow any qualified person to be appointed as the guardian over an adult who has been declared incapacitated. To obtain, you will need to petition to the Probate Court. You must give notice to all immediate family members and generally only one person is to be appointed. The Code of Alabama, §26–2A–104 does establish priorities for who shall be appointed. That statute states the priority as:

  1. Any person nominated in the incapacitated person’s most recent durable power of attorney.

  2. The spouse of the incapacitated person or a person nominated by the spouse.

  3. A parent of the incapacitated person or a person nominated by the parent.

  4. A relative of the incapacitated person, provided they have lived with the incapacitated person for more than six months.

  5. Any person nominated by an individual who is caring for or paying for the care of the incapacitated person.

Once an individual is appointed Guardian over either a minor or an incapacitated adult, the Guardian then has powers and duties which include:

  1. A Guardian of a minor has the same powers and responsibilities that a parent would have when it comes to the minor’s support, health, care, education or maintenance.

  2. The Guardian must become or remain personally acquainted with the person and maintain contact with them.

  3. The Guardian must take care of the personal effects of the person and perhaps commence proceedings, if necessary, to protect the property of the person.

  4. The Guardian must use the person’s money for the person’s current needs for support, health, care, education, and maintenance.

  5. The Guardian must conserve any of the excess money of the person’s for their future needs.

  6. The Guardian must report to the Court the condition of the person as often as the Court may order.

  7. The Guardian may also receive money for the support of the person, establish a home for them, consent to medical care, treatment, or advice, consent to the marriage or adoption, and may be entitled to compensation for their services.

A Conservator is a person who is appointed by the court to manage an incapacitated person’s estate. In other words, the Conservator is a person who, among other things, manages a person’s financial well-being including making decisions concerning the investment of assets; the payment of bills and expenses; the arrangement for the incapacitated person concerning room and board; the sale, purchase, or rental of property; the execution of contracts and agreements; and the voting of stock.

To obtain, you must petition to the Probate Court. Similarly to a guardianship, the laws of the State of Alabama give priorities in who may serve in the role of Conservator:

  1. A conservator, guardian of property, or other like fiduciary recognized by a court in another jurisdiction.

  2. An individual or corporation nominated by the incapacitated person or minor who is at least 14 years of age and has sufficient mental capacity to make an intelligent choice.

  3. A person appointed under a valid durable power of attorney.

  4. The spouse of the protected person or a person nominated by the will of a deceased spouse.

  5. An adult child of the protected person.

  6. A parent of the protected person.

  7. A relative of the protected person who has resided with the person for at least six months.

  8. A person nominated by a person who is caring for or paying benefits to the protected person.

  9. A county conservator or like individual.

Navigating the court system can always be a challenge and that is no different in cases of guardianship or conservatorship. If you have questions concerning guardianships or conservatorships, contact a local attorney for more information and direction.



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