In the event a loved one is no longer capable of handling their own affairs and has not executed a durable power of attorney and/or advance directive for healthcare, it may be necessary to file a guardianship and/or conservatorship proceeding.
Guardianship and Conservatorship proceedings in Alabama are conducted in the Probate Court. The allegedly incapacitated person and certain of his or her family members must be given notice of the proceeding. A guardian ad litem (an attorney) is appointed to protect the individual’s constitutional rights, and a court representative (sometimes but not always the same person as the GAL) is appointed to interview the individual and report to the judge. The individual has the right to attend the hearing and to testify if he or she desires.
Guardians are appointed to look after the physical well-being of the ward (i.e., the person subject to the guardianship). Guardians for incapacitated adults are similar to guardians for minor children—the guardian may determine where the ward is to live and may consent to medical treatment on the ward’s behalf, among other things.
Conservators are generally appointed to look after the ward’s money and other property. If the ward previously nominated someone (as part of a valid durable power of attorney) to serve in the event that a guardian or conservator is ever appointed over them, that nominee will generally be given preference. If there has been no such nomination, the court must look to the statute which sets out which family members should be given preferential consideration when selecting a guardian or ward. If no eligible person is available to serve, the county guardian may be appointed.
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