1 SB366
2 211833-2
3 By Senator Whatley
4 RFD: Judiciary
5 First Read: 01-APR-21
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1 211833-2:n:03/19/2021:AHP*/cmg LSA2020-2630
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8 SYNOPSIS: Existing law provides for the appointment of
9 guardians and conservators for incapacitated
10 persons.
11 This bill would allow for the removal of a
12 guardianship or conservatorship matter from the
13 probate court to the circuit court under certain
14 circumstances.
15 This bill would prohibit the general
16 conservator of a county from serving as a temporary
17 conservator or guardian for a period of more than
18 30 days unless there are exigent circumstances as
19 determined by the court following a hearing to
20 determine the need for extension of the
21 appointment.
22 This bill would require a hearing on an
23 appointment of a limited or general guardian to be
24 held no more than 90 days after the date of the
25 filing of a petition for appointment unless all
26 interested parties agree to the extension of time.
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1 This bill would require that, in any
2 proceeding for the appointment of a guardian of an
3 incapacitated person, notification regarding a
4 hearing be given to the attorney for the person
5 alleged to be incapacitated, as well as any adult
6 grandchildren of that person, if there are no adult
7 children.
8 This bill would provide that undue influence
9 exerted on a person is not, alone, adequate grounds
10 for determining that person is incapacitated and in
11 need of a guardian.
12 This bill would prohibit a court from
13 appointing a guardian or conservator for an alleged
14 incapacitated person in the event there is a person
15 holding a properly executed durable power of
16 attorney or health care directive on behalf of the
17 alleged incapacitated person unless the person
18 holding the durable power of attorney or health
19 care directive resigns, dies, becomes
20 incapacitated, or refuses to act on behalf of the
21 alleged incapacitated person.
22 This bill would prohibit automatic renewals
23 of orders appointing a temporary guardian for an
24 incapacitated person.
25 This bill would require conservators to
26 annually account to the court for administration of
27 a conservatorship.
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1 This bill would prohibit a conservator from
2 having authority to dismiss an attorney who was
3 retained by an incapacitated person to challenge
4 the initial order of appointment of conservator,
5 and from refusing to allow the attorney to meet
6 with the incapacitated person or participate in
7 proceedings related to the conservatorship unless
8 the incapacitated person consents to the dismissal
9 or refusal to participate.
10 This bill would prohibit, unless
11 specifically directed by the court, a conservator
12 from sharing medical records and reports, wills,
13 investment reports, deeds, or other confidential
14 information with any person who filed the petition
15 for conservatorship or with any attorney
16 representing a petitioner.
17 This bill would prohibit an alleged
18 incapacitated person from being required to pay the
19 fees for any attorney appointed to represent his or
20 her interests, the fees of any attorney
21 representing the petitioner, or the fees of any
22 experts or witnesses retained by the petitioner or
23 the petitioner's attorney.
24 This bill would provide that if an order
25 appointing a guardian or conservator is declared
26 void for lack of subject matter jurisdiction or
27 there is a determination that the alleged
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1 incapacitated person was denied due process in any
2 proceeding, no fees shall be paid to the
3 conservator, guardian, guardian ad litem, court
4 representative, or attorneys representing the
5 petitioner.
6 This bill would also provide that the annual
7 compensation paid to a guardian or conservator
8 shall be a reasonable fee based upon the actual
9 services provided by the guardian or conservator
10 for the care of an incapacitated person, minor, or
11 ward, and his or her affairs, and shall not include
12 services performed by an employee, agent, or
13 servant of the guardian or conservator.
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15 A BILL
16 TO BE ENTITLED
17 AN ACT
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19 Relating to guardianships and conservatorships; to
20 amend Sections 26-2-2, 26-2-3, 26-2-50, 26-2A-102, 26-2A-103,
21 26-2A-105, 26-2A-107, 26-2A-133, 26-2A-147, 26-2A-152, and
22 26-5-2, Code of Alabama 1975; to allow for the removal of a
23 guardianship or conservatorship matter from the probate court
24 to the circuit court under certain circumstances; to prohibit
25 the general conservator of a county from serving as a
26 temporary conservator or guardian for more than a certain
27 amount of time except for in certain circumstances; to set
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1 timing requirements for hearings on an appointment of a
2 limited or general guardian; to expand the list of people who
3 should be notified in any proceeding for the appointment of a
4 guardian of an incapacitated person; to provide that undue
5 influence exerted on a person is not, alone, adequate grounds
6 for determining that person is incapacitated and in need of a
7 guardian; to prohibit a court from appointing a guardian or
8 conservator for an alleged incapacitated person in certain
9 circumstances; to prohibit automatic renewals of orders
10 appointing a temporary guardian for an incapacitated person;
11 to require conservators to annually account to the court for
12 administration of a conservatorship; to further provide for
13 the duties and dismissal of an attorney under certain
14 conditions who was retained by an incapacitated person; to
15 prohibit, unless specifically directed by the court, a
16 conservator from sharing certain information with certain
17 people; to prohibit an alleged incapacitated person from being
18 required to pay certain attorney fees and expert or witness
19 fees; to provide that if an order appointing a guardian or
20 conservator is declared void for lack of subject matter
21 jurisdiction or there is a determination that the alleged
22 incapacitated person was denied due process in any proceeding,
23 no fees shall be paid to the conservator, guardian, guardian
24 ad litem, court representative, or attorneys representing the
25 petitioner; and to provide that the annual compensation paid
26 to a guardian or conservator shall be a reasonable fee based
27 upon certain factors.
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1 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
2 Section 1. Sections 26-2-2, 26-2-3, 26-2-50,
3 26-2A-102, 26-2A-103, 26-2A-105, 26-2A-107, 26-2A-133,
4 26-2A-147, 26-2A-152, and 26-5-2, Code of Alabama 1975, are
5 amended to read as follows:
6 "26-2-2.
7 "The administration or conduct of any guardianship
8 or conservatorship of a minor or incapacitated person may be
9 removed from the probate court to the circuit court, at any
10 time before the final order appointing a permanent conservator
11 or guardian or before the final settlement thereof by the
12 guardian or conservator of any such guardianship or
13 conservatorship or guardian ad litem or next friend of such
14 the ward or anyone entitled to support out of the estate of
15 such the ward without assigning any special equity, and an
16 order of removal must be made by the court or judge upon the
17 filing of a sworn verified petition by any such guardian or
18 conservator or guardian ad litem or next friend for the ward
19 or such a person entitled to support out of the estate of such
20 the ward, reciting in what capacity the petitioner acts and
21 that in the opinion of the petitioner such the guardianship or
22 conservatorship can be better administered in the circuit
23 court than in the probate court.
24 "26-2-3.
25 "(a) In any county where the judge of probate is
26 required to be learned in the law, the The administration or
27 conduct of any guardianship or conservatorship of a minor or
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1 incapacitated person may be removed from the probate court to
2 the circuit court pursuant to Section 26-2-2 at any time
3 before a proceeding for a final order appointing a permanent
4 conservator or guardian or a final settlement thereof is
5 commenced in probate court by the guardian or conservator of
6 the guardianship or conservatorship or guardian ad litem or
7 next friend of a ward or anyone entitled to support out of the
8 estate of the ward without assigning any special equity. The
9 circuit court shall remand the administration of a
10 guardianship or conservatorship transferred pursuant to this
11 section to the probate court if the circuit court finds that
12 the removal was sought for the purpose of improper delay or
13 did not comply with applicable law. The circuit court may
14 remand the administration of a guardianship or conservatorship
15 pursuant to this section to the probate court if the circuit
16 court finds that any of the following apply:
17 "(1) The circuit court has issued a final order or
18 judgment on all contested matters pending before the circuit
19 court in the administration of the guardianship or
20 conservatorship and the time for an appeal of the order or
21 judgment has expired without an appeal being filed or, if an
22 appeal was filed, after the final adjudication of the appeal.
23 "(2) All interested parties or their representatives
24 request the administration of the guardianship or
25 conservatorship be remanded to probate court.
26 "(b) Nothing in subsection (a) shall prevent the
27 administration of a guardianship or conservatorship from being
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1 removed again to the circuit court pursuant to Section 26-2-2
2 after the administration has been remanded to the probate
3 court as provided above.
4 "26-2-50.
5 "The general conservator of the county must shall
6 only be appointed conservator of an incapacitated person if no
7 other suitable person applies for appointment and qualifies
8 and if there be is no general conservator, the sheriff must be
9 appointed. The general conservator of the county shall not
10 serve as a temporary conservator or guardian for a period of
11 more than 30 days unless there are exigent circumstances as
12 determined by the court following a hearing to determine the
13 need for extension of the appointment.
14 "26-2A-102.
15 "(a) Except as provided by subsection (e), an
16 incapacitated person or any person interested in the welfare
17 of the incapacitated person may file a verified petition for
18 appointment of a limited or general guardian.
19 "(b) After the filing of a petition, the court shall
20 set a date for hearing on the issue of incapacity so that
21 notices may be given as required by Section 26-2A-103, and,
22 unless the allegedly incapacitated person is represented by
23 counsel, appoint an attorney to represent the person in the
24 proceeding. The hearing on appointment of a limited or general
25 guardian shall be held no more than 90 days after the date of
26 the filing of a petition for appointment unless all interested
27 parties agree to the extension of time. The person so
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1 appointed may be granted the powers and duties of a guardian
2 ad litem. The person alleged to be incapacitated shall be
3 examined by a physician or other qualified person appointed by
4 the court who shall submit a report in writing to the court.
5 The person alleged to be incapacitated also shall be
6 interviewed by a court representative sent by the court. The
7 person granted the powers and duties of a guardian ad litem
8 shall not also serve as the court representative. The court
9 representative also shall interview the person who appears to
10 have caused the petition to be filed and any person who is
11 nominated to serve as guardian and visit the present place of
12 abode of the person alleged to be incapacitated and the place
13 it is proposed that the person will be detained or reside if
14 the appointment is made and submit a report in writing to the
15 court. The court may utilize the service of any public or
16 charitable agency as an additional court representative to
17 evaluate the condition of the allegedly incapacitated person
18 and to make appropriate recommendations to the court.
19 "(c) A person alleged to be incapacitated is
20 entitled to be present at the hearing in person. The person is
21 entitled to be represented by counsel, to present evidence, to
22 cross-examine witnesses, including the court-appointed
23 physician or other qualified person and any court
24 representative, and upon demand to trial by jury as provided
25 in Section 26-2A-35. The issue may be determined at a closed
26 hearing if the person alleged to be incapacitated or counsel
27 for the person so requests.
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1 "(d) Any person may apply for permission to
2 participate in the proceeding, and the court may grant the
3 request, with or without hearing, upon determining that the
4 best interest of the alleged incapacitated person will be
5 served thereby. The court may attach appropriate conditions to
6 the permission.
7 "(e) The custodial parent or parents or an adult
8 custodial sibling of an adult child who is incapacitated by
9 reason of an intellectual disability, may file, in lieu of a
10 petition, a written request to be appointed guardian of his or
11 her adult child or his or her adult sibling in order to
12 continue performing custodial and other parental
13 responsibilities or family responsibilities, or both
14 responsibilities, for the child after the child has passed his
15 or her minority. The court may waive any or all procedural
16 requirements of the Uniform Guardianship Act, including notice
17 and service, and appointments, and interviews. The adult child
18 alleged to be incapacitated shall have had an examination by a
19 physician or other qualified person and furnish a written
20 report of the findings to the court.
21 "In lieu of a hearing, the probate court shall hold
22 an informal hearing with the custodial parent or custodial
23 parents or custodial adult sibling requesting the
24 guardianship, the adult child for whom the guardianship is
25 sought, and a guardian ad litem for the adult child chosen by
26 the judge of probate.
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1 "Following the interview, the court may do any of
2 the following:
3 "(1) Issue an order appointing the custodial parent
4 or custodial parents or custodial sibling as guardian of the
5 adult child as in any other proceeding pursuant to this
6 section.
7 "(2) Deny the request for appointment as guardian
8 pursuant to the special proceedings allowed only for a
9 custodial parent or custodial parents or custodial sibling.
10 "(3) Delay a determination on the request to gather
11 additional information in compliance with one or more of the
12 usual requirements for appointments, interviews, or
13 examinations by physicians or other qualified persons.
14 "26-2A-103.
15 "(a) In a any proceeding for the appointment of a
16 guardian of an incapacitated person, and, if notice is
17 required in a proceeding for appointment of a temporary
18 guardian, notice of hearing must be given to each of the
19 following:
20 "(1) The person alleged to be incapacitated, his or
21 her attorney if he or she has retained one, his or her her or
22 his spouse, (if any), and adult children, or if none, parents
23 and adult grandchildren;.
24 "(2) Any person who is serving as guardian,
25 conservator, or who has the care and custody of the person
26 alleged to be incapacitated;.
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1 "(3) In case no other person is notified under
2 paragraph (1), at least one of the nearest adult relatives
3 residing in this state, if any can be found; and.
4 "(4) Any other person as directed by the court.
5 "(b) Notice of hearing on a petition for an order
6 subsequent to appointment of a guardian must be given to the
7 ward, the guardian, and any other person as ordered by the
8 court.
9 "(c) Notice must be served personally on the alleged
10 incapacitated person. Notices to other persons as required by
11 subsection (a)(1) must be served personally if the person to
12 be notified can be found within the state. In all other cases,
13 required notices must be given as provided in Section