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Conservatorship

WHAT IS A CONSERVATOR?

A person who is appointed by the court to manage the property of a minor or incapacitated person.

WHO IS AN INCAPACITATED PERSON?

A person who is unable to manage property and business affairs because of:

  • mental illness
  • mental deficiency
  • physical illness
  • infirmities accompanying advanced age
  • chronic use of drugs
  • chronic intoxication
  • confinement
  • detention by foreign power
  • disappearance

WHO CAN SERVE AS A CONSERVATOR?

A family member or any interested person with the priorities as follows:

  1. conservator appointed in another jurisdiction
  2. person selected by incapacitated person
  3. person designated by incapacitated person’s power of attorney
  4. spouse
  5. adult child
  6. parent
  7. relative with whom ward has lived last six months
  8. nominee of person caring for incapacitated person
  9. general guardian or sheriff

WHEN CAN A CONSERVATOR BE APPOINTED?

A conservator may be appointed when an incapacitated person:

  • is unable to manage property and business affairs; and
  • has property that will be wasted without proper management; or funds are needed to support the incapacitated person or one entitled to support from the incapacitated person.

WHAT ARE THE POWERS AND DUTIES OF A CONSERVATOR?

Without court authorization the conservator may:

  • invest and reinvest funds
  • retain assets
  • receive additions
  • acquire undivided interest
  • deposit funds in financial institutions
  • acquire property
  • dispose of personal property
  • make repairs to building
  • enter leases up to 5 years
  • enter mineral leases
  • grant options up to one year
  • vote securities
  • pay assessments
  • sell or exercise stock options
  • deposit stocks and bonds
  • consent to reorganization, merger of a business
  • insure assets
  • borrow to protect estate
  • settle claims
  • pay reasonable annual compensation to conservator
  • pay taxes and expenses
  • allocate expenses to income
  • pay sum for benefit of protected person or his/her family
  • employ attorneys, auditors
  • prosecute or defend claims
  • execute and deliver appropriate instruments
  • hold securities currently owned by ward

[court may limit powers of conservator]

With prior court authorization the conservator may:

  • continue or participate in operating business
  • demolish improvements
  • dispose of real estate
  • subdivide, dedicate land
  • leases greater than 5 years
  • grant an option more than one year
  • take an option to acquire property

What investments may a conservator use?:

  • A conservator may invest ONLY in those investments authorized by Sections 19-3-120 & -121, Ala. Code 1975 (generally, passbook savings accounts in federally or state-chartered banks, and some U.S. or state bonds).
  • A conservator may NOT invest in the stocks or bonds of any private corporations (for example, the stock market).

AM I REQUIRED TO HAVE A LAWYER?

The legal complexity of guardianships and conservatorships normally necessitates having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?

The guardian looks after the person and their welfare while a conservator looks after their estate.

WHAT ARE THE STEPS FOLLOWED IN APPOINTING A GUARDIAN OR CONSERVATOR FOR AN ADULT?

  1. petition filed
  2. appointment of a guardian ad litem
  3. examination by physician
  4. appointment of court’s representative
  5. hearing
  6. jury at hearing if demanded
  7. bond for conservator
  8. order granting petition
  9. inventory of property for conservator
  10. letter of guardianship and/or conservatorship

IS A BOND REQUIRED?

Yes, a bond is required for conservatorships unless the bond requirement was waived in a Will or power of attorney. No bond is required for a guardianship.

IS AN INVENTORY REQUIRED?

Each conservator must complete an inventory of the estate immediately and file it with the court within 90 days after appointment.

ARE ACCOUNTINGS REQUIRED?

Yes, a conservator must give an accounting to the court at least once every three years. The court may order an accounting more frequently. An accounting is also required upon the resignation or removal of the conservator.


The Attorneys of ElderLaw Advocates assist clients in Birmingham, Alabama as well as Hoover, Homewood, Vestavia, Mountain Brook, Trussville, Gardendale, Irondale, Columbiana, Pelham, and Chelsea in Jefferson County and Shelby County. They also assist clients in Tuscaloosa, Montgomery, Prattville, Huntsville, Decatur, Sheffield, Muscle Shoals and Florence, Alabama.



© 2017 R.F. (Ben) Stewart III, Esq. | Disclaimer
1800 Providence Park, 250, Birmingham, Al 35242
| Phone: (205) 803-6724

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