Guardian or Conservator?
GUARDIAN
A guardian is a person appointed by the court to make decisions regarding the ward, specifically as it pertains to their health, support, education, or maintenance.
CONSERVATOR
A conservator is a person appointed by the court to administer the property of a minor or incapacitated person. Incapacitated persons are unable to manage property and/or their business affairs due to any of the following:
Mental Illness
Mental Deficiency
Chronic Use of Drugs and/or Intoxication
Physical Illness
Who Can Be Appointed?
GUARDIAN
Any qualified person may be appointed guardian of an incapacitated person. Unless lack of qualification or other good cause dictates the contrary, the court shall appoint a guardian in accordance with the incapacitated person's most recent nomination in a durable power of attorney. ALA. CODE § 26-2A-104. The following are persons who are entitled to consideration for appointment: (1) a spouse of the incapacitated person, (2) an adult child of the incapacitated person, (3) a parent of the incapacitated person, (4) any relative of the incapacitated person, and (5) a person nominated by the person who is caring for or paying for the care of the incapacitated person.
CONSERVATOR
The court may appoint an individual or a corporation with general power to serve as trustee or conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed: (1) A conservator, guardian of property, or other like fiduciary appointed or 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 14 or more years of age and of sufficient mental capacity to make an intelligent choice; (3) An attorney-in-fact under a valid durable power of attorney previously executed by the protected person; (4) The spouse of the protected person, or a person nominated by the will of a deceased spouse to whom the protected person was married at the decedent's death and the protected person has not remarried; (5) An adult child of the protected person; (6) A parent of the protected person, or a person nominated by the will of a deceased parent; (7) Any relative of the protected person who has resided with the protected person for more than six months before the filing of the petition; (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 county who must be appointed and act as conservator when no other fit person applies for appointment and qualifies. ALA. CODE § 26-2A-138.
Duties & Powers
GUARDIAN
A guardian of an incapacitated person is responsible for health, support, education, or maintenance of the protected person/ward, but is not liable to third persons by reason of that responsibility for acts of the ward. ALA. CODE § 26-2A-108. A guardian shall do the following:
Become (or remain) personally acquainted with the protected person to know of their capacities, needs, limitations, etc.
Take reasonable care of the protected person’s personal effects
Apply any money of the ward to the protected person’s current needs for health, support, education or maintenance
Conserve any excess money of the protected person for their future needs
CONSERVATOR
A conservator must observe the standards in dealing with the estate of the protected person that would be observed by a prudent person dealing with the property of another, and if the conservator has special skills or is appointed conservator on the basis of representations of special skills or expertise, the conservator is under a duty to use those skills. ALA. CODE § 26-2A-145. Conservators must keep suitable records of their administration of the protected person’s estate, including a complete inventory of the estate withing ninety (90) days of their appointment as conservator. ALA. CODE § 26-2A-146. Some of the powers a conservator has include the ability to:
Enter leases up to five (5) years
Pay/Contest/Settle claims
Pay taxes and expenses
Hold Securities
Dispose of personal property/ Acquire property
Collect/Hold/Retain assets
Invest and Reinvest funds
Removal/ Resignation/ Termination
GUARDIAN
On petition of the ward or any person interested in the ward's welfare, or on its own motion, the court, after hearing, may remove a guardian if to do so is in the best interest of the ward. On petition of the guardian, the court, after hearing, may accept a resignation. Upon removal, resignation, or death of the guardian, or if the guardian is determined to be incapacitated, the court may appoint a successor guardian and make any other appropriate order. ALA. CODE §§ 26-21-109,110.
CONSERVATOR
The court, on petition or on its own motion, may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. Upon the conservator's death, resignation, or removal, the court may appoint another conservator. ALA. CODE § 26-2A-143.
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