In Alabama, as in other states, a comprehensive estate plan should consider the possibility of incapacity — that is to say, a situation in which you have been rendered functionally incapable of managing your own affairs (whether personal, property, or business-related) — and adequately prepare for such a difficult situation. Without such preparation, you and your loved ones could be left without full access to necessary resources and care at a very sensitive time, and in some cases, your property could be mismanaged by an undesirable guardian or conservator.
For example, suppose that you get into a car accident and fall into a coma. You may have various assets (i.e., real estate property, investments, etc.) that you need to be managed while you are in a coma, and you may want a specific person to serve as your personal guardian during such time. Productive, loyal guardians and conservators are critical in situations where you are rendered either temporarily or permanently incapacitated.
Under Alabama law, the probate court is empowered to appoint both a guardian and a conservator, but when appointing people or entities to such positions, they must first take into account whether you have named a guardian/conservator in your estate planning documents. If you have not named a guardian/conservator (i.e., if you do not have an estate plan that includes a valid power of attorney document), then the court will appoint a guardian and conservator in accordance with the priorities set forth by Alabama statutory law.
Planning for guardianship and conservatorship, and — in the unfortunate event that it becomes necessary — navigating such proceedings, can be complicated and overwhelming for loved ones. As such, it is important to work with an experienced estate planning and probate attorney who has successfully guided clients through both the planning and appointment process.
So, what are the basics of guardianship and conservatorship?
Pursuant to Alabama statutory law, a guardian and conservator will be appointed when a person is deemed incapacitated.
A guardian is in charge of the personal care of an individual, and who generally acts in support of that individual’s welfare. A conservator, by comparison, is in charge of handling and managing the assets of the incapacitated person’s estate.
For example, if you are severely incapacitated, a guardian will be appointed to aid you in your day-to-day life, while a conservator will be appointed to manage your various assets, such as any real estate properties you may own.
A person is incapacitated (in the context of guardianship and conservatorship proceedings) when they lack sufficient understanding or capacity to make or communicate responsible decisions, generally related to management of assets, financial decisions, and decisions involving day-to-day matters — it does not matter how the incapacity was caused.
Incapacity can be caused by:
In an estate plan, the durable power of attorney document allows one to name their desired guardian and conservator, along with backups. Without a durable power of attorney, a petition must be filed with the probate court.
When an Alabama court is appointing a guardian and a conservator without the help of documents that name persons or entities to such positions, the court will prioritize the following persons, in order:
Attorney Daniel Chambers has dedicated his career to helping clients successfully resolve their various family law, estate planning, and probate issues. He understands that guardianship and conservatorship issues can be complicated, and is personally available to answer any questions or concerns you may have throughout the appointment process. To discuss your concerns with a skilled Hoover guardianship and conservatorship lawyer, contact Daniel H. Chambers, Attorney-at-Law, PC,by calling 205-913-4057. You can also schedule your initial consultation by contacting Attorney Chambers online.
We have used Daniel Chambers for legal services on several occasions since 2007 with excellent results. He has assisted our family in each matter with a professional yet tenacious manner. He has always been upfront about possible outcomes and honest about how to appropriately deal with challenging situations. I have recommended him several times over and will continue to do so. He has been an incredible asset to have on our legal team and we have always been satisfied with the results.
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