Foley Alabama Attorneys

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A Durable Power of Attorney is an Excellent Place to Start a Plan

Rising life expectancies over the last three decades have significantly increased the population in this country of those over the age of 65.  This is a great thing!  There are however, some issues that come along with the advancements in medical care that have led to longer life expectancies.  Most of us will have to deal with a gradual decline in health at some point and perhaps live a significant portion of our lives with some degree of disability. 

Sadly, many people end up in situations where disabilities prevent or inhibit taking care of routine business and personal matters, and often get to this point without a clear long term care plan.  One way to limit the negative effects in this regard is to have a properly drafted financial durable power of attorney.  A financial durable power of attorney allows a person of your choosing to act on your behalf should you become unable to handle your everyday financial affairs.  The term “durable” simply means that the power of attorney is intended to remain in effect even if you become incapacitated.

Should you fail to execute a durable power of attorney, the state of Alabama has enacted protective legislation in order to provide a mechanism for loved ones to step in and legally act on behalf of an incapacitated person.  In Alabama, the Probate Court has jurisdiction of guardianship and conservatorship matters.  A guardian in Alabama is someone appointed to make personal decisions such as those with respect to living arrangements and health care.  A conservator is a guardian of the estate of the individual and has authority over financial decisions. 

Guardianship and conservatorship proceedings are often launched simultaneously.  Like all court proceedings, the person seeking guardianship and conservatorship must petition the Probate Court and give notice to all interested parties.  There will then be a hearing in order to determine the necessity of a guardian which must include an opinion from a physician.  

The court will also appoint an attorney for the alleged incapacitated person known as guardian ad litem.  The guardian ad litem is responsible for representing the interests of the alleged incapacitated person and often prepares a report for the court in the event that the alleged incapacitated person is unable to attend court or unable to provide testimony. 

Once appointed, the guardian like an agent under a power of attorney, is a fiduciary which means that she has an affirmative duty to act in the best interest of the incapacitated person.  Unlike powers of attorney, guardianships and conservatorships are supervised by the court and the guardian and conservator must provide reports and accountings with respect to the subject’s person and estate.

The issues associated with aging and long term care are especially relevant in our community in South Baldwin County.  Our beautiful landscape and favorable weather makes Baldwin County an excellent place to retire.  Often the issues described above are complicated by the fact that retirees in our community may live many miles away from close family members.  The need for a plan is not immediately apparent since most of our residents are healthy and happy upon initial retirement.  It is vitally important to address as many of these issues associated with long term care and incapacity while still capable and competent to do so.  A durable power of attorney is an excellent place to start.  However, if a guardianship or conservatorship proceeding is to be initiated or such a proceeding is contested, our estate lawyers are ready to represent you and your loved ones in Probate and Circuit courts in Alabama.  Our attorneys especially excel in situations where multiple parties are involved in the fight over the guardianship and/or conservatorship of an individual, or where a power of attorney or previously Court appointed Guardian or Conservator has breached his or her fiduciary duties to the ward and/or prevented other family members from accessing the ward.  If you are interested in learning more about the services we offer relating to Guardianship and Conservatorship, please call us today at (251) 444-7000 or toll free at (855) 390-5566 and let us know how we can help you.


Our estate planning and litigation attorneys are some of the most active litigation practitioners in Alabama. Our lawyers have had enormous success in both probate and circuit courts. To schedule a free consultation with our experienced Alabama estate planning attorneys, please contact us.

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