Top 10 Questions on Guardianships in Alabama

The need to appoint a Guardian for a loved one may become a relevant topic for us all at some point during our lifetime. Whether for a minor child or an adult who has become incapacitated, Guardianships are appointed to protect and assist loved ones when they are unable. Recently, I presented material on this topic for the newly elected Probate Judges of the state of Alabama. Below is an outline of the first part of my presentation to help you become more familiar with Guardianships in the state of Alabama:

1. Who needs a guardian?
• Until individual is 19, his/her parents are recognized as natural guardians. No court involvement necessary.
• After individual is 19, he or she is presumed competent, able to make his/her own decisions about health, schooling, living arrangements, etc.
• Parent no longer has legal authority to make such decisions, absent appointment by Probate Court.
2. When is a guardian needed? Ala. Code Section 26-2A-105(b) and 26-2A-20(8)
• Once the Court is satisfied that the person is incapacitated and needs guardian to provide continuing care and supervision.
• Person is deemed to be incapacitated when he/she is impaired by mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying old  age, chronic use of drugs, chronic intoxication or other cause except minority to the extent of lacking sufficient understanding OR capacity to make or communicate responsible decisions.
3. Who may be appointed guardian? Ala. Code Section 26-2A-104, 26-2A-104.1
• person named in the ward’s durable power of attorney
• spouse of ward or nominee of ward’s spouse
• adult child of ward
• parent of ward or nominee of ward’s parent
• relative with whom ward has lived the prior 6 months
• nominee of ward’s caretaker
• private 501(c)(3) corporation if ward is developmentally disabled
• any person the Court deems in the best interest to serve
4. How is a guardian appointed? Ala. Code Section 26-2A-102
• Petition filed by someone interested in the person’s welfare
• Court sets hearing
• Court gives notices
• Court appoints guardian ad litem unless person already has attorney
• Court orders examination of person by doctor/other qualified person and written report from the examiner
• Court orders court representative to examine person at home + petitioner + proposed guardian + proposed new abode if any, and submit written report
• Person may attend / participate in hearing
5. How does the short track guardianship differ?  Ala. Code Section 26-2A-102(e)
• Custodial parent(s) or adult custodial sibling files request to be appointed guardian
• Court holds informal hearing with whoever made the request and the person involved
• Still required: guardian ad litem
• Still required: written report by doctor/other qualified person
• Court may waive any notice, service, interview requirements. No lawyer, no court representative, no notices are mandatory
6. Emergency guardianships. Ala. Code Section 26-2A-107
• In event of emergency. Cannot be renewed indefinitely.
7. What is the guardian to do? Ala. Code Sections 26-2A-108–adult ward 26-2A-78–minor ward
• Guardian of adult has same duties, powers and responsibilities as does a guardian for a minor. 
• 6 “shall” and 6 “may”:
• must assume responsibilities for health, support, care and education
• must become personally acquainted with ward
• must take reasonable care of ward’s personal effects
• must apply available money for current needs for health, support, education and maintenance 
• must conserve excess money, cooperating with conservator, if any
• must report the condition of the ward to the court, as required by court
• may receive limited funds for support of ward. (Section 26-2A-6*)
• may take custody of ward and establish residence for ward
• may compel payment for support of ward if there is no conservator
• may consent to medical care as would a parent
• may consent to marriage or adoption
• may delegate certain decision making responsibilities to the ward [court may limit powers of guardianship]
  
  *Parent (as custodian) may receive property that would otherwise be distributed to minor without court involvement within certain limits: up to $5,000 lump sum or $25,000 total, paid in increments.  Ala. Code Section 26-2A-6. Code says guardian for adult has same powers and duties as does a guardian for a minor. Therefore, appears this could also apply for adult ward.
8. May a guardian pull the plug? Alabama Code Section 22-8A-11
• Suppose the ward develops serious medical issue/needs surgery. Who may consent? How far does the guardian’s authority extend?
• Alabama’s Natural Death Act authorizes competent adults to make medical directives. Competent adults usually do this one of three ways: verbally, through an Advance Directive or through a Health Care Power of Attorney. 
• What about someone who is unable to do any of the three? Alabama recognizes surrogate decision makers in such a case. The rules for appointing surrogates when there is no Living Will, or other advanced medical directive are in Ala. Code Section 22-8A-11; they relate to decisions to be made when there is a terminal illness, injury or permanent unconsciousness.
• Among the priorities as to who may serve as surrogate, the guardian is first on the list with this proviso: “provided the appointment specifically authorizes the guardian to make decisions regarding the withholding of life-sustaining treatment or artificially provided nutrition and hydration.” 
• Since so many Letters of Guardianship do not contain such special authority the following are listed as others who may serve as surrogate: under Alabama Code Section 22-8A-11:
• ward’s spouse
• adult child
• parent
• adult sibling
• or other adult relatives, among others
9. What happens if the guardian dies?
• Unless a guardian remains after one guardian dies, normally a successor has to be appointed.  See if the court will appoint two guardians initially to postpone necessity to appoint new guardian.
• Another way to avoid a repeat guardianship hearing is with appointment of  successor guardian in the Will of the last parent and assuming the named successor guardian agrees to serve. Ala. Code Section 26-2A-100
10. When does the guardianship end? Ala. Code Sections 26-2A-109, 26-2A-79
• death of ward
• resignation of the guardian
• adoption of the minor ward
• marriage of the minor ward
• minor becoming an adult
• when ward’s incapacity is terminated

This information should help address some of the basic questions on Guardianships in Alabama, and is not intended to take the place of legal advice. For more guidance on Guardianships in Alabama, please feel free to call me at (205) 789-9894.

Outline of these top 10 questions on Guardianships in Alabama is part of material that was presented by Attorney Richard G. Burton to the Alabama Probate Judges Association's Conference held on January 23, 2019 in Tuscaloosa, Alabama.

Birmingham Estate Planning Attorney Richard Burton provides legal services in Estates, Wills & Trusts, Probate Administration, Guardianship and Conservatorship, Asset Protection Planning, Business Succession Planning, Federal & State Tax Planning, Charitable Giving & Private Foundations. Contact Richard at www.attorneyrichardburton.com or call (205) 789-9894.