How Guardianship Works in Alabama for Children & Families

Updated

Coach Nick Saban has built a college football dynasty at the University of Alabama. Part of the reason for the Crimson Tide’s success is that players help and support their fellow players. Helping and supporting others is central to the concept of the guardianship laws in Alabama. However, how guardianship works in Alabama isn’t always similar to other states. 

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When children in Alabama don’t have parents to care for them or manage their property, the guardianship laws provide for other persons to help and support such children. Similarly, when certain adults in Alabama, based on old age, developmental disabilities, or special needs, cannot care for themselves or manage their property, the guardianship laws provide for other persons to help and support such adults.

This article discusses how guardianship works in Alabama for children and families. It’s essential to understand these laws no matter your current situation. 

What Types of Guardianship Exist in Alabama?

To begin, what types of guardianship exist in Alabama? The two principal types of guardianship in Alabama can be distinguished based on the scope of responsibility that each involves. These are called guardianships and conservatorships. 

  • Guardianship: With guardianship in Alabama, an adult is responsible for the personal care of an individual.
  • Conservatorship: Alternatively, with conservatorship in Alabama, an adult is responsible for the property of an individual.

As you can see, these types differ based on what they cover. One manages a person’s decisions, daily routine, and care. The other cares for someone’s property, like a home or financial account. These can also overlap. 

Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Alabama?

With that in mind, who are the default guardians? Depending on the specific situation, there are various possible default guardians In Alabama. It can be confusing to understand which applies, so consider these situations:

  • Designation: First, you can designate a guardian for your children in the event of your death under a will. This designation establishes a default guardian for a child, subject to two exceptions. First, a child who is age 14 or older can reject the parental designation and choose a different person to be guardian. Second, a court may appoint as guardian any person whose appointment would be in the best interests of the child. The same is true for a legal spouse, parent, or another else outlined in a will to care for an incapacitated adult. 
  • Power of attorney: For a guardian for an “incapacitated person” (including an older adult or adult with developmental disabilities or special needs), the default guardian is often named as a Power of Attorney. 
  • Court appointed: Alternatively, the court appoints can appoint a default guardian for an incapacitated person, unless the default guardian is not qualified or good cause indicates otherwise. This is usually a spouse, parent, or other relative. 

Similarly, there is also an order to determine a default conservator for a “protected person” (generally defined as a child or other person for whom a conservator has been appointed). In Alabama, this is as follows:

  1. A conservator recognized by an appropriate court of any other jurisdiction in which the protected person resides;
  2. An individual or corporation nominated by the protected person who is age 14 or older and of sufficient mental capacity to make an intelligent choice;
  3. An attorney-in-fact under the protected person’s Power of Attorney;
  4. The spouse of the protected person or a person nominated in the Will of such spouse;
  5. An adult child of the protected person;
  6. A parent of the protected person or a person nominated in the Will of such parent;
  7. Any relative of the protected person with whom the protected person has resided for more than six months;
  8. A person nominated by one who is caring for or paying benefits to the protected person; and
  9. A general guardian or sheriff for the applicable county. 

The court, acting in the best interest of the protected person, may appoint this default conservator or appoint another person as conservator. As you can see, there are many different ways guardianship is applied in Alabama. This is why it’s essential to plan ahead when you can. 

What Forms Do You Need to File for Guardianship in Alabama?

The key form to establish a guardianship or conservatorship in Alabama is the Petition for Letters of Guardianship and/or Conservatorship. While you might be able to access these forms online in some counties, you will likely have to go through the county court. 

The court that handles this in Alabama is the County Administrator and the Counter Guardian. You can contact your specific county guardian administrator for more instructions. 

How Do You File for Guardianship in Alabama?

You file for guardianship or conservatorship in Alabama by filing Petitions for Letters of Guardianship and/or Conservatorship in the probate court in the county where the child or adult requiring guardianship or conservatorship resides.

After the Petition for Letters of Guardianship and/or Conservatorship is filed, notice of the Petition is sent to certain required persons under Alabama law. The court holds a hearing on the Petition and decides whether and how the guardianship or conservatorship should be established. These types of conservatorships and guardianships almost always involve hearings, including testimony and documentation. 

How Do You Assign a Guardian for a Minor Child in Alabama?

Guardianship and conservatorship in Alabama are judicial processes. In other words, you need judicial approval to assign a guardian or conservator for a child (or adult) in Alabama. 

In addition, after guardianship and conservatorship begin, court supervision is a basic element of both guardianship and conservatorship in Alabama. This is done to protect both children and adults placed under the care of a guardian. 

How Guardianship Works for Minor Children

There are several types of guardianships for children in Alabama. There are full guardianships, limited guardianships, temporary guardianships, and emergency guardianships. Let’s take a look at these types in greater detail. 

Full guardianships

Under full guardianship, a guardian of a child has the powers and responsibilities of a parent regarding the child’s health, support, education, or maintenance.

Among the specific responsibilities of the guardian are:

  • Be personally acquainted, and maintain sufficient contact, with the child to know of the child’s capacities, limitations, needs, opportunities, and physical and mental health;
  • Take reasonable care of the child’s personal effects;
  • Apply any available money of the child to the child’s current needs for health, support, education, or maintenance;
  • Conserve any excess money of the child for the child’s future needs; and
  • Report the condition of the child, as ordered by the court.  

Limited, temporary, and emergency guardianships

In Alabama, the court, in the interest of developing self-reliance on the part of a child or for other good cause, may limit the powers of the guardian and create a limited guardianship. With a limited guardianship, the guardian is vested with more specific, rather than full, authority to care for the child.   

A temporary guardianship in Alabama is established for a specific time, and this can be no longer than six months. Similarly, an emergency guardianship in Alabama is a form of temporary guardianship when an emergency situation arises (such as when the child is being abused). Emergency guardianships do not last beyond 30 days, but they can be renewed.

How Guardianship Works for Older Adults

Guardianship in Alabama is not limited to children. It can also apply to older adults (or others) who are “incapacitated persons.” Under Alabama law, an incapacitated person is any person who is impaired by reason of:

  • Mental illness
  • Mental deficiency
  • Physical illness or disability
  • Physical or mental infirmities accompanying advanced age
  • Chronic use of drugs
  • Chronic intoxication
  • Lacking sufficient capacity to make or communicate responsible decisions

Guardianships for incapacitated persons are generally similar to guardianships for children in Alabama. The process is very similar, and the needs of the adult are taken into account first and foremost. 

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

In Alabama, guardianships can be established for adults with developmental disabilities or special needs as incapacitated persons (similar to for older adults who are incapacitated persons, as described above).

Limited guardianships are often used for adults with developmental disabilities. This means the adult is still in control of aspects of his or her care, but they have the support they need. 

How Conservatorship Works

A conservator is appointed in Alabama when a protected person is unable to manage property. This can be property that can be wasted without proper management, or it can be property that is needed to support the protected person or someone entitled to support from the protected person.   

Among the powers of a conservator are to:

  • Invest: Invest and reinvest funds or assets. Similarly, they can collect, hold, retain assets, receive additions, and acquire an undivided interest.
  • Banking: They can deposit funds to the extent insured in a state or federally insured financial institution.
  • Property management: Conservators can make ordinary or extraordinary repairs or alterations in buildings or other structures. They can also enter into a lease for a term not exceeding five years (longer than five years with prior court authorization).
  • Business: They might consent to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
  • Tax preparation: One role is also to pay taxes, assessments, and other expenses.

Conservatorships in Alabama are subject to three special requirements. First, conservators are required to obtain a bond, unless the requirement was waived in a will or Power of Attorney. Second, conservators must complete an inventory of the protected person’s estate and file it with the court within 90 days after appointment. Third, conservators must complete an accounting to the court at least every three years (subject to the court ordering an accounting more frequently).   

Frequently Asked Questions: Guardianship in Alabama

Guardianship in Alabama can be a complex topic, raising many questions. The following are a few of the frequently asked questions:

How long is temporary guardianship in Alabama?

Temporary guardianship in Alabama is for no longer than six months. Emergency guardianship is even shorter, lasting a total of 30 days. This is not supposed to be a long-term option. 

What’s the difference between guardianship and conservatorship in Alabama?

In Alabama, guardianship involves someone taking responsibility for the personal care of another individual, while custodianship involves someone taking responsibility for the property of another individual. If you’re not sure which is right for you or your loved one, talk to a legal team.

Can you get guardianship without going to court in Alabama?

Guardianship and custodianship are both judicial processes. That means you do need to go to court. Going to court can be intimidating, especially when you consider legal fees, court costs, and litigation delays. Still, you can minimize these negative consequences through certain actions.

First, you may want to consider a form of guardianship other than full guardianship. With limited guardianship, you can have the guardianship cover only certain issues. With temporary guardianship, you can have the guardianship be in effect for only a certain period of time. With such less comprehensive and shorter forms of guardianship, you may possibly still obtain the intended benefits from guardianship, with reduced negative consequences.

Second, there are two actions that you can take instead of going to court for a conservatorship.

With a Power of Attorney, you can provide in advance for someone, known as an agent, to manage your property in the event of your disability. You can have different agents for different assets and successor agents if your first choice for agent cannot serve. You do not have to go to court to create a Power of Attorney.

With a trust, you can provide in advance for a trustee to manage property in the event of disability. A trust can manage property in the event of your disability, such as by naming a successor trustee for your “Living Trust” in the event of your disability. A trust also can manage property in the event of another person’s disability, such as by an irrevocable trust or a “special needs” trust. You do not have to go to court to create a trust.

Advance Planning: Effective for Crimson Tide Football Success and Better Guardianship and Custodianship Decision-Making 

The use of Powers of Attorney and trusts suggests the importance of advance planning for guardianship and conservatorship issues. These alternatives may not be for every person, but they should at least be considered.

Advance planning also is involved when you designate a guardian for your children under a Will or for yourself if you are incapacitated under a Power of Attorney. While these designations are subject to court approval, they are default guardian designations (and therefore may be given preference) under Alabama law.

Alabamians are familiar with the use of advance planning to achieve favorable results. Alabama’s football team uses advance planning to develop a successful game plan to use for its next game. Coach Nick Saban and his assistant coaches consider what plays and strategies can be most effective for the Crimson Tide against the next opponent. Whether for football success or better guardianship and custodianship decision-making, advance planning is an effective tool to use in Alabama.

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