Guardians and Conservators Guardians Of Persons GUARDIAN l

Guardians and / Conservators

Guardians Of Persons GUARDIAN l WARD l Minor l Incapacitated Person

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

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

Court appointment of Guardians of Minors 1. 2. 3. 4. 5. 6. 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

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

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

Proceeding for court appointment/Sample Forms 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 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

Guardian for Developmentally Disabled 26 -2 A-104. 1 n n Individual Non profit corporation

Special Guardianships n Welfare funds Uniform Veterans Guardianship Curators (Repealed) n School Guardians (Do not exist) n n

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

Minor’s and Person’s Unable to Manage their Assets Criteria: 1. Minor 2. Person unable to manage their affairs a. mental illness b. Physical illness c. Infirmities of advanced age d. Alcohol or drugs e. Prison f. missing

Where to file n Probate Court n n Where person resides Nonresidents-Where person’s property is located

Procedure for appointment/ Sample Forms 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 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

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

Termination of Conservator n n n Death Resignation Petition

Joint Petition Guardian/Conservator 1. Joint petition (one case) 2. Proof both procedures 3. Joint order 4. Joint letters

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

Minors and Persons Unable to Manage their Assets 1. Minor 2. Person unable to manage their affairs a. mental illness b. Physical illness c. Infirmities of advanced age d. Alcohol or drugs e. Prison f. Missing

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 -1 A-301] ØGeneral Agency law (8 -2 -1) [26 -1 A-101] ØSpecific power ØSigned ØAcknowledged ØRecorded as other real estate records ØVoid on incompetency if made before 1/1/2012

2 A. 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 -1 A-102 g 1. 2. 3. 4. 5. 6. 7. 8. 9. Power to sell real estate § 26 -1 A-204 May incorporate powers by reference Signed & Acknowledged Photocopy or electronic copy valid Recorded Durability survives: A. Disability B. Incompetence-legal determination C. Incapacity Effective or later specified time or event A. Method of determining when incapacity exists B. By person designated, physician, attorney, or judge Revocation. Form 26 -2 A-301

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) 1. 2. 3. 4. 5. 6. 7. 8. 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: A. Disability B. Incompetence-legal determination C. Incapacity When effective Method of determining when incapacity exists Revocation.

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 Ø Avoidable-not void Ø Before majority or within 3 years Ø Ratification is a payment after majority 2. Remove the Disabilities of non-age See 18 -107 Ø Parent petitions Ø Juvenile court or probate court Ø 18 years of age and not married Ø Notice in newspaper 3 times Ø Best interest of child Ø Record judgment in Probate office 3. Or get married.

4. GRANDPARENTS WISH TO GIVE THEIR GRANDSON A LOT BUT AVOID THE PROBLEMS OF THEIR GRANDDAUGHTER, ADVISE. Uniform Transfers to Minors Act 35 -5 A-1 Ø“ John Doe as custodian for Mary Doe under the Alabama Uniform Transfers to Minors Act. ” ØTransfer without minor having a conservator. ØTitle in the minor until: 35 -5 A-12 ØMajority, Ødeath or Ø 21 years of age.

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.

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? 1. Annuity and Mortality Tables 2. Life expectancy @ 80 (9. 14 years) Ø 80 plus 9. 14= 89. 14 years ØLand value $100, 000 2. Life expectancy as percentage of value of property Ølife expectancy 9. 14 = 10. 25% age of expectancy 89. 14 $100, 000 X 10. 25% (. 1025)= $10, 250 3. Rental value per year ØRent per month ØLife expectancy ØValue of life estate $ 500. 00 x 12 mo. ($6, 000/yr) x 10. 25 years $ 61, 500

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

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

8. How may a person in a coma sell their property? Through a Conservator 1. 2. 3. 4. 5. 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”.

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?

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.

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

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

Where to file Conservatorships Probate Court ØWhere person resides ØNonresidents-Where person’s property is located

Procedure for appointment Form 11 -110 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 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

Powers of Appointed Conservator Without further court order 26 -2 A-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

Termination of Conservator ü Death ü Resignation ü Petition

Solo and Small Firm Section of the Alabama Bar.