GUARDIANSHIP OUTLINE I. WHAT IS A GUARDIAN a. A person who manages - - PDF document

GUARDIANSHIP OUTLINE

I. WHAT IS A GUARDIAN

• a. A person who manages the maintenance and support of another
• i. Takes care of day to day living
• ii. Healthcare
• iii. Food
• iv. Clothing
• v. Expenses
• vi. Basically the same as a parent
• b. Difference between Guardian and Conservator
• i. One handles the physical needs the other handles the estate if there is one
• ii. Only need Conservator if there is an estate or financial assets
• 1. Typically not an issue for parents of special needs children

II. WHY MIGHT YOU NEED A GUARDIANSHIP

• a. If a person cannot take care of themselves, they need to have a guardian appointed
• i. Any minor who does not have a guardian
• ii. An adult who previously had capacity but can no longer care for

themselves

• iii. Person who has been incapacitated from birth who reaches age of majority
• 1. Once a person reaches age of majority, they are considered an

adult

• 2. State considers them competent
• 3. Parents lose rights
• 4. Parent is not automatically considered Guardian. Still have to

petition court.

• b. It allows the Guardian to act and speak for the Ward in all matters
• i. Able to make day to day decisions for the Ward
• 1. Access to doctors and medical records

• 2. Access to any finances that are necessary for care and maintenance
• 3. Decisions about access to Ward by others

III. WHO CAN BE A GUARDIAN

• a. Any qualified person may be appointed Guardian of an incapacitated person Ala.

Code § 26-2A-104 (a)

• b. State gives priority by statute (Generally) Ala, Code §26-2A-104 (c)
• i. Spouse
• ii. Adult child of incapacitated person
• iii. Parent of incapacitated person
• iv. Any relative of the incapacitated person
• 1. Must have been living with them six (6) moths prior
• v. Any person nominated by the Court
• 1. Court can pass over person higher in priority if in best interests of

Ward

• 2. For persons with equal priority Court will decide based on best

interest of Ward

• vi. Can file for Co-Guardians

IV. WHEN SHOULD YOU START THE GUARDIANSHIP PROCESS

• a. If you have a child that you believe will need to have a guardian appointed start

gathering documentation from birth

• i. This will provide necessary evidence for court and save you time later
• b. Start getting everything together a year or two prior to reaching age of majority.
• i. Contact Probate Court and find out exactly what you will need
• ii. Cannot file until reach age of majority (19 in Alabama)

V. WHAT IS THE PROCESS

• a. Each state has process However, there are similarities
• i. Person interested in becoming guardian petitions court and pays fee

• 1. This is typically done in the Probate Court of the county in which

the person resides

• 2. File personally (pro se) or hire an attorney
• a. Probate Court typically has forms to fill out to do pro se
• b. Find an attorney who does this type of work
• i. Probate
• ii. Elder Law
• iii. Disability
• iv. Special Education
• 3. Pay filing fee.
• a. Typically not expensive.
• i. In Shelby County Alabama under $50.
• ii. Guardian ad litem appointed by court
• 1. This person will represent the alleged incapacitated person (Ward)

during the proceeding

• iii. Once petition is filed, notice sent out
• iv. Court will seat jury
• 1. Six-person jury (Alabama)
• 2. Notice to all interested parties
• a. Notice can be waived except for potential Ward
• v. Date set for proceeding
• vi. Evidence presented to the court and determination made regarding the

capacity of the individual

• vii. If case is proven, then court will appoint the petitioner as Guardian
• 1. Note: The court can appoint another person if they feel that the

person petitioning may not be able to adequately care for the Ward

• b. Alabama has provision for persons who have been disabled from birth (Fast Track

Guardianship)

• i. Ala. Code § 26-2A-102 (e) - Appointment of guardian for incapacitated

person by will or other writing

• 1. If child is disabled from birth, allows petitioner to bypass the

formal hearing and present evidence directly to the court.

• a. Medical records
• b. Diagnosis from doctor with recommendation for

Guardianship

• c. Petitioner can be parent or adult sibling
• c. Once Guardianship has been established it can be transferred to another person

via the Guardian’s Will

• i. Choose someone you trust completely.
• 1. Sometimes siblings don’t have best interest in mind

VI. DUTIES OF GUARDIAN

• a. Generally
• i. Provide proper care, maintenance, education, and support.
• ii. Supply food, clothing, shelter, and necessaries.
• iii. Authorize medical, surgical, dental, psychiatric, and psychological care

(although some medical treatments, such as experimental treatments, require court approval).

• iv. Making sure the protected person is properly trained and educated, and

that the person has the opportunity to learn a trade, occupation, or profession.

• v. File an Annual Report of the Guardian each year letting the court know

how the protected person is doing.

• b. Specifically – ALABAMA Code of Alabama §26-2A-108(a) and 26-2A-78(b)
• i. Become or remain personally acquainted with the ward and maintain

sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;

• ii. Take reasonable care of the ward's personal effects and commence

protective proceedings if necessary, to protect other property of the ward;

• iii. Apply any available money of the ward to the ward's current needs for

health, support, education, or maintenance;

• iv. Conserve any excess money of the ward for the ward's future needs, but if

a conservator has been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to the conservator money of the ward to be conserved for the ward's future needs; and

• v. Report the condition of the ward and of the ward's estate that has been

subject to the guardian's possession or control, as ordered by the court on petition of any person interested in the ward's welfare or as required by court rule.

• c. Specifically – OUTSIDE ALABAMA
• i. Check your state laws for any specific duties of a Guardian
• ii. Court will typically provide documentation with information
• iii. If uncertain call an attorney licensed in your state

VII. CONSIDERATIONS/ALTERNATIVES CONCERNING GUARDIANSHIP

• a. The Ward is adjudicated incompetent
• i. Loss of independence/rights
• 1. Cannot make own decisions
• 2. Cannot vote Constitution of Alabama 1901 Article VIII
• ii. Will not be able to enter into contracts
• 1. Lease apartment
• 2. Buy a car
• 3. Some jobs will not be available
• 4. Limited educational opportunities
• b. Limited Guardianship
• i. If high functioning the court can grant a Limited Guardianship.
• ii. Court can look to encourage the greatest independence of the Ward Ala.

Code §26-2A-78(e)

• c. Power of Attorney (POA)
• i. Person granting POA must have capacity to do so
• 1. Same capacity for creation of a Will

• ii. Principal grants to another (Agent) the ability to legally act in the

Principal’s name

• 1. Attorney in Fact
• 2. Can do anything the Principal can do
• 3. Binds the Principal legally
• iii. Principal can grant as much or as little authority as they want
• 1. Financial
• 2. Medical
• 3. Contracts
• iv. Can be revoked later by Principal
• v. If “Durable” Agent’s authority will continue even if principal’s capacity

later becomes diminished

• 1. In Alabama POA is Durable unless the document states otherwise
• Ala. Code §26-1A-104
• vi. Does NOT prevent Principal from acting on their own.

VIII. SPECIAL NEEDS TRUST

• a. The donor/grantor (Settlor) creates it to hold property and/or assets for the benefit

and maintenance of another (Beneficiary)

• b. Managed by a Trustee
• i. Beneficiary does not actually own the property, owned by Trust
• 1. Doesn’t affect SSI or Medicaid eligibility as a result
• a. $2000.00 in cash
• b. One vehicle (primary transportation)
• c. Home (if residence)
• 2. Can include a Spendthrift Clause Code of Ala §19-3B-502
• a. Protect the Trust assets
• i. Beneficiary cannot spend it
• ii. Creditors cannot get to it
• b. Must have specific language in Trust
• i. See your State’s specific rules

Used for the care and maintenance of Beneficiary

• c. Food
• d. Clothing
• e. Medical costs
• i. Wheelchair
• ii. Medication
• iii. Operations
• f. Vacation
• g. Housing
• h. Any specific needs of the Beneficiary
• c. Multiple Types of Trusts
• i. First Party Trust
• 1. Funded by money and assets owed by Beneficiary
• a. Remaining assets are paid to Medicaid
• ii. Third Party Trust
• 1. Funded by family member
• a. Remaining assets can be distributed to other Beneficiaries
• iii. Pooled Trusts
• 1. Funded by non-profits.
• a. Assets pooled for individual Beneficiaries
• d. Can be created while Settlor is still living or after death by Will (Testamentary)
• e. There is very specific language that needs to be in a Trust. If you are not

confident then seek the advice of an attorney for assistance. NOTE: If you believe that the Beneficiary will need Medicaid or SSI do NOT allow property to be transferred directly to them via a Will or other gifts. Put everything into the Trust.