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Guardians and / Conservators

Learn about the appointment process, powers, and responsibilities of guardians and conservators for minors and incapacitated persons. Understand the procedures and sample forms for court appointments. Discover the termination and joint petition options.

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Guardians and / Conservators

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  1. Guardians and / Conservators

  2. Guardians Of Persons GUARDIAN l WARD l l Minor Incapacitated Person

  3. Guardians of Minors • Parents • Will • Delegate Temporary Guardian 1 year (Court may appoint not to exceed 6 months) • Effective upon acceptance • Non parents • Court Appointment • Petition to Judge of Probate • Where minor resides or • Present at time of filing

  4. Payments to minor • Less than $5,000 • $3,000 per year < $25,000 • Paid to parent • Notice of payment filed with Probate Judge • Greater amounts require Conservator

  5. Court appointment of Guardians of Minors • Petition • G.A.L. (Minor 14 or more may nominate) • Notice of hearing to necessary parties • Order granting Guardianship • Acceptance of Guardianship • Letters of Guardianship

  6. Powers of a Guardian • Assume the role of a parent • Other 26-2A-78 until • Termination of Guardianship • Death • Majority • Marriage • Resignation • adoption

  7. Guardians Incapacitated Adults • Appointment Priorities • Durable power of attorney • Spouse • Adult child • Parent • Relative lived with past 6 months • Caretaker> • Where filed • Where incapacitated person resides • Where present at time of filing • County that commits person

  8. Proceeding for court appointment/Sample Forms • Petition • Guardian at litem • Physician testimony • Court representative - investigation • Guardian ad litem appointed • Sheriff service on adult • Jury, if demanded • Hearing • Order granting guardianship to an individual • Acceptance by Guardian • Letters of Guardianship

  9. Guardian for Developmentally Disabled 26-2A-104.1 • Individual • Non profit corporation

  10. Special Guardianships • Welfare funds • Uniform Veterans Guardianship • Curators (Repealed) • School Guardians (Do not exist)

  11. Conservators of Property CONSERVATOR l PROTECTED PERSON l l Minor Incapacitated Person

  12. Minor’s and Person’s Unable to Manage their Assets • Criteria: • Minor • Person unable to manage their affairs • mental illness • Physical illness • Infirmities of advanced age • Alcohol or drugs • Prison • missing

  13. Where to file • Probate Court • Where person resides • Nonresidents-Where person’s property is located

  14. Procedure for appointment/ Sample Forms • Petition • Inventory • Bond • Hearing set • G.A.L. • Physician • Court representative • Sheriff serves party • Hearing • Order appointing Conservator • Letters of Conservatorship • Title to property in Conservator

  15. Powers of Appointed Conservator • Without court order • Deposit money and write checks • Sell stock • Pay taxes • Employ attorneys and CPAs • Settle law suits • Dispose of personal property • With a court order • Sale land

  16. Termination of Conservator • Death • Resignation • Petition

  17. Joint PetitionGuardian/Conservator • Joint petition (one case) • Proof both procedures • Joint order • Joint letters

  18. Why do I need to know this? Conservator - Money and Property Guardian – Person Before 1987 Guardian was used for both $ &

  19. Minors and Persons Unable to Manage their Assets • Minor • Person unable to manage their affairs • mental illness • Physical illness • Infirmities of advanced age • Alcohol or drugs • Prison • Missing

  20. 1. Law student sends her husband to buy their house and close a loan financing the purchase. General Power of attorney: (form 23-101) [26-1A-301] • General Agency law (8-2-1) [26-1A-101] • Specific power • Signed • Acknowledged • Recorded as other real estate records • Void on incompetency if made before 1/1/2012

  21. 2A.Senior Citizen wants to make sure her children can manage her assets now that she is old and forgetful. All powers of Attorneys are Durable after 1-1-12§ 26-1A-102 g • Power to sell real estate § 26-1A-204 • May incorporate powers by reference • Signed & Acknowledged • Photocopy or electronic copy valid • Recorded • Durability survives: • Disability • Incompetence-legal determination • Incapacity • Effective or later specified time or event • Method of determining when incapacity exists • By person designated, physician, attorney, or judge • Revocation. • Form 26-2A-301

  22. 2.(B).Senior Citizen in 2019 wanted to make sure her children can look after her and her estate only if she becomes disabled Springing Power of Attorney: 26-1-2 (Form 23-103) • Specific power to sell • “This power of attorney shall not be affected by disability, incompetency, or incapacity of the principal” • Signed • Acknowledged • Recorded • Durability survives: • Disability • Incompetence-legal determination • Incapacity • When effective Method of determining when incapacity exists • Revocation.

  23. 3. At age 18 wants to sell her house to pay for college. How can sell the house? 1. Can she execute a deed? See 18-101 • Avoidable-not void • Before majority or within 3 years • Ratification is a payment after majority 2. Remove the Disabilities of non-age See 18-107 • Parent petitions • Juvenile court or probate court • 18 years of age and not married • Notice in newspaper 3 times • Best interest of child • Record judgment in Probate office 3. Or get married.

  24. 4. Grandparents wish to give their Grandson a lot but avoid the problems of their Granddaughter, advise. Uniform Transfers to Minors Act 35-5A-1 • “ John Doe as custodian for Mary Doe under the Alabama Uniform Transfers to Minors Act.” • Transfer without minor having a conservator. • Title in the minor until: 35-5A-12 • Majority, • death or • 21 years of age.

  25. TRANSFER UNDER THE ALABAMA UNIFORM TRANSFERS TO MINORS ACT I, ______ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to ______ (name of custodian), as custodian for ______ (name of minor) under Alabama Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: ________ _________________” (Signature) ___________ (name of custodian) acknowledges receipt of the property described above a custodian for the minor named above under the Alabama Uniform Transfers to Minors Act. Dated: ________ ________________ (Signature of Custodian) (c) A transferor shall place the custodian in control of the custodial property as soon as practicable.

  26. 5. Grandmother age 80 has a life estate in her house. She is selling her house & moving into a retirement home What is the value of her life Estate? • Annuity and Mortality Tables • Life expectancy @ 80 (9.14 years) • 80 plus 9.14= 89.14 years • Land value $100,000 • Life expectancy as percentage of value of property • life expectancy 9.14 = 10.25% age of expectancy 89.14 $100,000 X 10.25% (.1025)= $10,250 • Rental value per year • Rent per month $ 500.00 x12 mo.($6,000/yr) • Life expectancy x10.25 years • Value of life estate $ 61,500

  27. 6. How can a 15 year old sell the property they have inherited ? • May a parent sell their child's property until 19 years of age? • Only through a Conservator. • Minor > 14 may nominate a G.A.L..

  28. 7. May an incompetent Person sell real estate? • All contracts are void 8-1-170 • Purchases in good faith, without notice of insanity, are not void. • Must pay the market value of property. • Must pay for necessities • Section 8-1-172 Mortgage taken in good faith on real estate of insane person not void.

  29. 8. How may a person in a coma sell their property? Through a Conservator • Must have a G.A.L. • Physician must testify of incompetency • Court may appoint a “Court’s Representative” • Letters of Conservatorship • “John Doe as Conservator for Mary Doe”.

  30. 9. Can a convicted felon in prison inherit and sell the property to pay their lawyer ? Betty is convicted of killing her husband. 1.Can she inherit their House? 2.Can she take under a JT/RS Deed? 3. Is there any problem for her to sell her property owned before the murder to pay her lawyer?

  31. 10. Missing people A passenger that was on the party boat lost over the Gulf during Hurricane Michael has a contract to sell her house. Now the family of missing person wants to complete the sell before they lose the deal.

  32. 11. Protected person owns only one piece of property but need to sell to stay in a nursing home • 26-2A-137 Court may appoint a single transaction conservator for the sole purpose to sale the land. • Court may provide protective arraignments for a protected person for leasing oil, gas and minerals Act 2017-245

  33. Incompetent person has a “Curator”What is a Curator? • Curators existed for a time similar to now Conservators. • Repealed 1-1-1997 • Curators became Conservators

  34. Where to file Conservatorships Probate Court • Where person resides • Nonresidents-Where person’s property is located

  35. Procedure for appointment Form 11-110 • Petition • Inventory • Bond • Hearing set • G.A.L. • Physician • Court representative • Sheriff serves party • Hearing • Order appointing Conservator • Letters of Conservatorship • Title to property in Conservator

  36. Powers of Appointed Conservator Without further court order 26-2A-152 • Deposit money and write checks • Sell stock • Pay taxes • Employ attorneys and CPAs • Settle law suits • Dispose of personal property With a court order • Sale land

  37. Termination of Conservator • Death • Resignation • Petition

  38. Solo and Small Firm Section of the Alabama Bar.

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