Baxley Maniscalco Attorneys At Law
If a loved one has mentally or physically declined and can no longer take care of themselves, a well-drafted durable power of attorney will take effect and empower that person’s designated agent to manage her affairs and make decisions on their behalf.
If they don't have a power of attorney, a guardianship or conservatorship may be necessary.
Can Someone Sign a Power of Attorney If They Don't Already Have One?
If a person needs help taking care of themselves, it may be too late for them to sign a power of attorney. In order for a POA to be legally effective, the person must have legal capacity at the time he or she signs the document.
This means they must be "able to understand and comprehend his or her actions." In plain terms, this means the person must know what a power of attorney is, what effect it has, and the identity of the person they want to appoint.
Capacity can be difficult to determine, and there is no bright line test. Factors that may be considered in determining a person's capacity to sign a document include age, mental ability, and any disabilities or impairments.
If a person does not have capacity to sign a power of attorney,the only way for someone to obtain this legal authority is by filing a petition for guardianship and/or conservatorship, which begins a court proceeding.
How Do I Know If a Guardian or Conservator Is Needed Under Alabama Law?
There's no clear line marking when a person becomes incapacitated, and sometimes it can be hard to know when to take action. In other cases, the need is clear.
Under Alabama law, incapacity depends on whether a person “lacks sufficient understanding or capacity to make or communicate responsible decisions” due to a mental or physical deterioration or illness. Ala. Code § 26-2A-20(8).
This determination depends on a number of factors, including the person’s ability to responsibly manage her finances, medication, and other basic tasks of daily living.
How Do You Establish a Guardianship in Alabama?
Under Alabama law, a petition for guardianship/conservatorship is filed in the Probate Court of the county in which the person resides. There are several strict requirements that must be followed for the petition’s contents and filing. Once the petition is filed, an attorney will be appointed to be Guardian Ad Litem for the person, and the person must be evaluated by a qualified physician. Ala. Code § 26-2A-102(b).
At the hearing, the petitioner bears the burden of proving incapacity by a preponderance of the evidence. Establishing a guardianship in Alabama is not an easy or simple process.
If you are have questions about guardianship/conservatorship, please contact us and set up a consultation.
Who Will the Court Appoint as Guardian or Conservator?
Alabama law provides an order of priority for appointment as guardian or conservator: (1) most recent durable power of attorney, (2) the spouse, (3) a child, (4) a parent, (5) a live-in relative, or (6) someone who is nominated by the person’s caretaker.
Ala. Code. § 26-2A-104. However, the court does not necessarily have to abide by that order if it feels that another person would be in the incapacitated individual's best interests.
How Do I Begin the Process of Guardianship in Alabama?
If you have a loved one who may need to have a guardian appointed in Alabama, please contact the Alabama elder law attorneys at Baxley Maniscalco, LLP.
Call or text us at (256) 770-7232 to set up a free and confidential consultation.