A Guardian is a person appointed by the Court to make decisions concerning a person's physical needs. An incapacitated person is someone who is physically and/or mentally unable to care for himself/herself. In some cases the person has a chronic use of drugs or alcohol, is confined, or is being detained by a foreign power, or has disappeared. A guardian may be appointed when a person can no longer make decisions regarding their personal needs or in the case of a minor when both parents are deceased. In some cases a Guardian might become necessary because the person might have suffered a stroke or other illness and be unable to respond or make medical decisions alone. Once the petition for appointment of a Guardian is filed for an adult, a physician must examine the ward and render a report of his/her findings. In addition, the Court will appoint a Court Representative and a Guardian ad Litem. In the case of a minor the Court will only appoint a Guardian ad Litem.
Guardianship Frequently Asked Questions
WHAT IS A GUARDIAN?
A guardian is the parent of a minor or someone who has been appointed by the Probate Court to be responsible for the personal care of an individual. Generally speaking a guardian is responsible for food, clothing, medical, and shelter issues relating to a minor or incapacitated adult.
WHAT IS A WARD?
Legal name for a person for whom a guardian has been appointed.
Any qualified person may be appointed. However, the law establishes the following priorities:
- Person named in a durable power of attorney
- Spouse or spouse's nominee
- Adult child
- Parent or parent's nominee
- Relative with whom person has lived the prior 6 months
- Nominee of caretaker of person
WHO CAN BE GUARDIAN FOR A CHILD?
The Probate Court may appoint any person who will act in the best interest of the minor. However, if the minor is 14 years old or older, the minor's nominee must be appointed unless the appointment is contrary to the minor's best interest. Also, a parental nomination has priority.
CAN A PARENT APPOINT A GUARDIAN?
Yes, in a will a parent may appoint a guardian for a minor child or for an unmarried incapacitated child.
CAN A SPOUSE APPOINT A GUARDIAN?
Yes, in a will a person may appoint a guardian for his or her incapacitated spouse.
- Must assume responsibilities of a parent regarding support, care and education
- Must become personally acquainted with ward
- Must take reasonable care of ward's personal effects
- Must apply available money for current needs or health, support, education and maintenance
- Must conserve excess money
- Must report the condition of the ward to the Probate Court as Ordered
- May receive limited funds for support of ward
- May take custody of ward and establish a home
- May compel payment of support
- May consent to medical care
- May consent to marriage or adoption
- May delegate certain responsibilities to the ward for the decision making
- Upon death
- Upon resignation of the guardian
- Upon adoption of the minor
- Upon marriage of the minor
- Upon minor becoming an adult
- When ward's incapacity is terminated
AM I REQUIRED TO HAVE A LAWYER?
The legal complexity of guardianships and conservatorships normally necessitates having an attorney since the Judge of Probate cannot advise you of the law or provide you with forms.
WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?
The guardian is a person who looks after the child or incapacitated person and their welfare while a conservator is responsible for safeguarding the assets of a child or incapacitated person.
- Petition filed
- Appointment of a guardian ad litem
- Examination by physician
- Appointment of Probate Court's representative
- Jury at hearing if demanded
- Order granting petition
- Letters of guardianship
IS A BOND REQUIRED?
IS AN INVENTORY REQUIRED?
ARE ACCOUNTINGS REQUIRED?
This information page, which is based on Alabama law, is to inform and not to advise. No person should ever apply or interpret any law without the aid of a lawyer who analyzes the facts, because the facts may change the application of the law.