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Guardians and / Conservators
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Guardians Of Persons GUARDIAN l WARD l l Minor Incapacitated Person
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Guardians of Minors Parents Non parents Will
Delegate Temporary Guardian 1 year (Court may appoint not to exceed 6 months) Effective upon acceptance Non parents Court Appointment Petition to Judge of Probate Where minor resides or Present at time of filing
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Payments to minor Less than $5,000 $3,000 per year < $25,000
Paid to parent Notice of payment filed with Probate Judge Greater amounts require Conservator
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Court appointment of Guardians of Minors
Petition G.A.L. (Minor 14 or more may nominate) Notice of hearing to necessary parties Order granting Guardianship Acceptance of Guardianship Letters of Guardianship
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Powers of a Guardian Assume the role of a parent Other 26-2A-78 until
Termination of Guardianship Death Majority Marriage Resignation adoption
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Guardians Incapacitated Adults
Appointment Priorities Durable power of attorney Spouse Adult child Parent Relative lived with past 6 months Caretaker> Where filed Where incapacitated person resides Where present at time of filing County that commits person
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Proceeding for court appointment/Sample Forms
Petition Guardian at litem Physician testimony Court representative - investigation Guardian ad litem appointed Sheriff service on adult Jury, if demanded Hearing Order granting guardianship to an individual Acceptance by Guardian Letters of Guardianship
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Guardian for Developmentally Disabled 26-2A-104.1
Individual Non profit corporation
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Special Guardianships
Welfare funds Uniform Veterans Guardianship Curators (Repealed) School Guardians (Do not exist)
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Conservators of Property
CONSERVATOR l PROTECTED PERSON l l Minor Incapacitated Person
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Minor’s and Person’s Unable to Manage their Assets
Criteria: Minor Person unable to manage their affairs mental illness Physical illness Infirmities of advanced age Alcohol or drugs Prison missing
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Where to file Probate Court Where person resides
Nonresidents-Where person’s property is located
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Procedure for appointment/ Sample Forms
Petition Inventory Bond Hearing set G.A.L. Physician Court representative Sheriff serves party Hearing Order appointing Conservator Letters of Conservatorship Title to property in Conservator
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Powers of Appointed Conservator
Without court order Deposit money and write checks Sell stock Pay taxes Employ attorneys and CPAs Settle law suits Dispose of personal property With a court order Sale land
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Termination of Conservator
Death Resignation Petition
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Joint Petition Guardian/Conservator
Joint petition (one case) Proof both procedures Joint order Joint letters
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Why do I need to know this?
Conservator - Money and Property Guardian – Person Before 1987 Guardian was used for both $ &
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Minors and Persons Unable to Manage their Assets
Person unable to manage their affairs mental illness Physical illness Infirmities of advanced age Alcohol or drugs Prison Missing
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General Power of attorney: (form 23-101) [26-1A-301]
1. Law student sends her husband to buy their house and close a loan financing the purchase. General Power of attorney: (form ) [26-1A-301] General Agency law (8-2-1) [26-1A-101] Specific power Signed Acknowledged Recorded as other real estate records Void on incompetency if made before 1/1/2012
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2A. Senior Citizen wants to make sure her children can manage her assets now that she is old and forgetful. All powers of Attorneys are Durable after § 26-1A-102 g Power to sell real estate § 26-1A-204 May incorporate powers by reference Signed & Acknowledged Photocopy or electronic copy valid Recorded Durability survives: Disability Incompetence-legal determination Incapacity Effective or later specified time or event Method of determining when incapacity exists By person designated, physician, attorney, or judge Revocation. Form 26-2A-301
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Springing Power of Attorney: 26-1-2 (Form 23-103)
2.(B).Senior Citizen in 2019 wanted to make sure her children can look after her and her estate only if she becomes disabled Springing Power of Attorney: (Form ) Specific power to sell “This power of attorney shall not be affected by disability, incompetency, or incapacity of the principal” Signed Acknowledged Recorded Durability survives: Disability Incompetence-legal determination Incapacity When effective Method of determining when incapacity exists Revocation.
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3. At age 18 wants to sell her house to pay for college
3. At age 18 wants to sell her house to pay for college. How can sell the house? 1. Can she execute a deed? See Avoidable-not void Before majority or within 3 years Ratification is a payment after majority 2. Remove the Disabilities of non-age See Parent petitions Juvenile court or probate court 18 years of age and not married Notice in newspaper 3 times Best interest of child Record judgment in Probate office 3. Or get married.
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Transfer without minor having a conservator.
4. Grandparents wish to give their Grandson a lot but avoid the problems of their Granddaughter, advise. Uniform Transfers to Minors Act 35-5A-1 “ John Doe as custodian for Mary Doe under the Alabama Uniform Transfers to Minors Act.” Transfer without minor having a conservator. Title in the minor until: 35-5A-12 Majority, death or 21 years of age.
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TRANSFER UNDER THE ALABAMA UNIFORM TRANSFERS TO MINORS ACT
I, ______ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to ______ (name of custodian), as custodian for ______ (name of minor) under Alabama Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: ________ _________________” (Signature) ___________ (name of custodian) acknowledges receipt of the property described above a custodian for the minor named above under the Alabama Uniform Transfers to Minors Act. ________________ (Signature of Custodian) (c) A transferor shall place the custodian in control of the custodial property as soon as practicable.
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5. Grandmother age 80 has a life estate in her house
5. Grandmother age 80 has a life estate in her house. She is selling her house & moving into a retirement home What is the value of her life Estate? Annuity and Mortality Tables Life 80 (9.14 years) 80 plus 9.14= years Land value $100,000 Life expectancy as percentage of value of property life expectancy = 10.25% age of expectancy $100,000 X 10.25% (.1025)= $10,250 Rental value per year Rent per month $ x12 mo.($6,000/yr) Life expectancy x10.25 years Value of life estate $ 61,500
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6. How can a 15 year old sell the property they have inherited ?
May a parent sell their child's property until 19 years of age? Only through a Conservator. Minor > 14 may nominate a G.A.L..
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7. May an incompetent Person sell real estate?
All contracts are void Purchases in good faith, without notice of insanity, are not void. Must pay the market value of property. Must pay for necessities Section Mortgage taken in good faith on real estate of insane person not void.
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8. How may a person in a coma sell their property?
Through a Conservator Must have a G.A.L. Physician must testify of incompetency Court may appoint a “Court’s Representative” Letters of Conservatorship “John Doe as Conservator for Mary Doe”.
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9. Can a convicted felon in prison inherit and sell the property to pay their lawyer ?
Betty is convicted of killing her husband. 1.Can she inherit their House? 2.Can she take under a JT/RS Deed? 3. Is there any problem for her to sell her property owned before the murder to pay her lawyer?
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10. Missing people A passenger that was on the party boat lost over the Gulf during Hurricane Michael has a contract to sell her house. Now the family of missing person wants to complete the sell before they lose the deal.
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11. Protected person owns only one piece of property but need to sell to stay in a nursing home
26-2A-137 Court may appoint a single transaction conservator for the sole purpose to sale the land. Court may provide protective arraignments for a protected person for leasing oil, gas and minerals Act
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Incompetent person has a “Curator” What is a Curator?
Curators existed for a time similar to now Conservators. Repealed Curators became Conservators
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Where to file Conservatorships
Probate Court Where person resides Nonresidents-Where person’s property is located
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Procedure for appointment Form 11-110
Petition Inventory Bond Hearing set G.A.L. Physician Court representative Sheriff serves party Hearing Order appointing Conservator Letters of Conservatorship Title to property in Conservator
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Powers of Appointed Conservator
Without further court order 26-2A-152 Deposit money and write checks Sell stock Pay taxes Employ attorneys and CPAs Settle law suits Dispose of personal property With a court order Sale land
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Termination of Conservator
Death Resignation Petition
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Solo and Small Firm Section of the Alabama Bar.
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