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What is Guardianship?


When you find that a loved one is unable to competently deal in their affairs, you may need to seek guardianship of them. Their incompetence may be short term, long term, or indefinite. It is important to understand the ins and outs of guardianship as there are different ways you can be a guardian.

This article will cover all of the basics of guardianship and how it can be used to help out those closest to you during their time of need, whether it be someone who is sick, has a disability, or an adult child who needs someone to watch over them.

What is a Guardianship?

In the state of Alabama, a guardianship is a proceeding in which a court appoints someone to take care of an incapacitated adult. This caretaker is called a guardian, and the person in need of care is known as the ward.

Alabama law states that a incapacitated person is “any person who has one or more of the following impairments: physical illness or disability, mental illness, mental deficiency, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, as well as lacks the ability to make or communicate responsible decisions.” To be deemed an incapacitated person, the potential ward must have one of the impairments AND not have the ability to make responsible decisions. Not every person with a disability is incapacitated.

Probate Court

A Probate Court will decide whether or not someone is deemed incapacitated when a petition is filed for guardianship. If the Probate Court believes a person has an impairment that causes them to be unable to make responsible decisions then the court may appoint a guardian over that person. Alabama law provides some limitations on guardianships for a person with developmental disabilities in that guardianships should be used mainly to protect an individual from abuse and neglect. The person with a disability should retain as much independent decision making as possible.

What are the Responsibilities of a Guardian?

A guardian has fiduciary obligations to the ward. One of the most important duties as a guardian is to make sure the ward’s day-to-day needs are met. A guardian has to be able to make decisions regarding healthcare, legal matters, and personal well-being of their ward. Personal well-being means making sure the ward has proper clothing, food, education, health care and is protected from neglect and abuse. The guardian must always act in the best interests of the ward, even if that conflicts with the interests of the guardian.

The guardian must perform the following duties: 

  • Get to know the ward, including the ward’s abilities, needs, limitations, and take care of the ward’s personal effects
  • Apply the ward’s money to the ward’s current needs for health, support, education, or maintenance
  • Conserve any excess money of the ward’s for their future needs
  • Report the condition of the ward to the court when ordered to do so

When Does a Guardianship End?

A guardianship can end a few ways, the most common ones being:

  • If the ward passes away
  • If the guardian resigns
  • If the ward is a minor and they are adopted
  • If the ward is a minor and they get married
  • If the ward is a minor and they turn 18
  • If the ward becomes healthy (not incapacitated)

Types of Guardians

There are multiple types of guardians depending on the situation and future needs of the ward. In general, there are three basic types of guardianship: Full, limited, and joint.

Full Guardianship

This involves total responsibility and decision-making ability or authority over the ward, which includes financial, legal and personal affairs.

Limited Guardianship

Guardianship that is limited to just one or two areas, such as healthcare or financial needs.

Joint Guardianship

A joint guardianship means more than one guardian will be appointed for the ward.

Get Quality Advice from the Professionals at Brackin Law Firm

When you or someone you love is in need of a guardianship, an experienced lawyer can help you address the legal matters that can affect one’s quality of life and health. You’ll need an expert to interpret complex Alabama laws and you’ll want the very best to help you plan for your loved ones.

At Brackin Law Firm our experienced attorneys can assist you or your loved ones with planning for long or short term care and ensuring medical needs are met should the time come when you or your family member can no longer care for oneself, no matter the length of time.

We are passionate about developing a guardianship plan that works for you, and we will work with you to ensure that your future is laid out in writing. If you’re searching for a skilled attorney that knows the ins and outs of a guardianship or conservatorship, get in touch with us today to schedule your initial consultation.

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