Planning Ahead
needs, but given the modest cost of having a document tailored for you, it is foolish to risk problems that you might not recognize in a “one-size-fi ts-all” document.
It is a good idea to check with your
bank or other fi nancial institution to be sure the power of attorney form you execute is satisfactory with the bank. Some institutions insist on their own forms. You will also want to clarify that, even if you execute a springing power, you intend the document to remain valid until and unless you revoke it and notify the bank.
Occasionally banks will insist that a
power of attorney is “no good” because it was executed several years ago. Problems with banks refusing to accept “springing powers” from years’ past are good reasons to avoid springing powers, since this defeats the purpose for executing a Power of Attorney while one is competent. The idea is to avoid problems during a long period of incapacity. It is best to address those issues ahead of time.
Guardianships & Conservatorships All states have some safety net available
for those situations in which no voluntary plans were made. The designated court may appoint a “guardian of the person” and/or a “guardian of the property”. Different states have different terms for the two functions. In Alabama, appointment of someone to make personal decisions and supervise living arrangements - the “guardian of the person” - is termed “Guardianship”. The process of appointing someone to manage the property of an incapacitated individual is “Conservatorship”. Probate Courts usually handle these actions in Alabama. The probate judge can appoint two people to serve the different functions, or one person to serve in both capacities.
lanning Ahead
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Who Starts the Process? Usually these procedures are initiated
by someone close to the incapacitated person. If there is no one to step forward and do so, however, the process can be commenced by a report to the Department of Human Resources that an individual is being neglected, abused or exploited. Pursuant to the Adult Protective Services Act, DHR can investigate and if court action appears to be warranted to prevent abuse, neglect or exploitation of a vulnerable adult, DHR initiates the Guardianship process. In those counties where there is a County Conservator, that person is usually appointed, at least to manage the property. The Adult Protective Services Act is codifi ed at Alabama Code § 38-9-1. This is not a commitment process; in fact a person may not be committed to a mental institution as a result of a protective petition. (The commitment process is only used in those cases in which a person is “a danger to him/herself or others” and the standards for commitment are stringent, as they should be. The Involuntary Commitment Act is found at Alabama Code § 26-52-1.)
Appointing One or Both Often when a person’s ability to take
care of him/herself has reached the point that court intervention is sought, it is necessary to appoint both a Guardian and a Conservator. However, it is possible to appoint either a Conservator or a Guardian without appointing the other, though some courts seem reluctant to appoint only a Conservator. This may be out of a desire to avoid future court proceedings and expense if the Ward’s mental condition later deteriorates, as often happens. Nonetheless, the standard for appointing a Guardian of the person, which removes most of an individual’s civil rights, is stricter than the standards for appointing a Conservator for the estate of someone who is having diffi culty
205-333-2990 •
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