Guardianship

All persons with disabilities have the right, to the maximum extent of their abilities, to make decisions about their own lives. Guardianship should be a last resort, used only when all less restrictive alternatives have been considered. If a guardian is needed, the guardian’s role should be limited to the maximum extent possible, allowing the person with the disability as much decision-making authority as possible.

While ADAP does not help people obtain guardianships over persons with disabilities, we can provide many kinds of help regarding guardianship issues:

• We provide training and resources to individuals and to groups regarding guardianship and alternatives to guardianship
• We assist persons in navigating situations where capacity to consent has created problems in obtaining necessary services, care, and treatment.
• We assist persons in considering and executing substitute decision-making arrangements (representative payee, power of attorney, health care proxy, etc.) when necessary to promote, protect, and expand their rights.
• We assist persons in creating Supported Decision-Making arrangements to assist them in retaining the opportunity to make their own decisions, with necessary support from others.
• We assist persons by providing them with legal representation to defend against guardianships, seek limitation of guardianships, seek removal and replacement of guardians, and seek termination of guardianships.

Note: The information provided below offers general information about guardianships and alternatives to guardianships. It is not intended to provide legal advice. If you want additional information, contact ADAP, your local courts, or a private attorney.

A guardianship is a formal legal procedure in which a court strips a person of the power to make personal decisions about their life and gives that power to another person. In a guardianship, a court grants one person (the guardian) the power to make nearly all personal decisions for another person (the ward). In general, those decisions include where the ward lives, what services and care the ward receives, and what contracts the ward can make. A guardianship is always documented in a court order and letters of guardianship.

A court may appoint a guardian to any person whom it determines to be incapacitated.

Under Alabama law, an incapacitated person is someone “who is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority)” such that they “lack sufficient understanding or capacity to make or communicate responsible decisions.”

A guardianship is obtained through a court proceeding. Any individual interested in the welfare of a person with a disability may petition for the appointment of a guardian in the probate court where the person with a disability resides or is present at the time of the petition filing.

Because a guardianship significantly deprives a person with a disability of their personal rights, the court must afford the person due process before ordering a guardianship. This includes providing the person with sufficient notice about the proceeding. It also includes providing the person with a disability with legal representation during the guardianship proceeding and allowing the person presenting evidence and cross-examining witnesses.

Once the petition has been filed, the court will issue a series of orders appointing a court representative, a doctor to examine the person with a disability, and a guardian-ad-litem (GAL) to represent the person’s interest. The duties of each of these parties is described below:

A guardian is responsible for safeguarding the personal well-being of the ward. The guardian must ensure the ward has proper clothing, food, education, and health care. The guardian must ensure the ward is protected from neglect, exploitation, and abuse. The guardian must, at all times, act in the best interests of the ward, even if doing so conflicts with the interests of the guardian.

The guardian must:

• get to know the ward, including the ward’s abilities, needs, limitations, and health condition
• 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 for the ward’s future needs
• report the condition of the ward to the court when so ordered

Unless limited by the court, a guardian may:

• receive money payable to the ward 
• determine where the ward lives
• consent to medical and other treatment of the ward
• consent to marriage or adoption of the ward
• allow the ward to make some decisions about the ward’s life

The guardian is responsible for making decisions that affect virtually every part of the ward’s life. The guardian must take this responsibility very seriously. All decisions must be made with the ward’s best interests in mind. Abuse of the

guardianship power is subject to severe sanction by law enforcement personnel and courts.

In a conservatorship, the court strips a person of the power to deal with their own financial and property matters and gives that power to another person (the conservator). Like a guardianship, conservatorship is documented by a court order and letters of conservatorship.

The following situations or relationships do not create a guardianship:

• A person has always been the parent or caregiver for another person 
• A person has been granted power of attorney for another person
• A person has been designated as a health care proxy for another person
• A person has been allowed to sign medical consents for another person
• A person has been designated as a sponsor for the residential placement of another person
• A person is on a joint bank account for another person
• A person has been appointed as representative payee for Social Security benefits for another person
• A person has been appointed as representative for other government benefits for another person
• A person serves as trustee on a trust benefiting another person
• A person has been appointed as conservator for another person

• Pursuing a guardianship can be expensive (typically costing over $1500).
• Pursuing a guardianship can be difficult and time-consuming (requires hiring an attorney, filing pleadings, giving notice, and attending hearings).
• A guardianship is an extreme deprivation of a person’s rights. The court is stripping the ward of the ward’s rights as an adult and giving the ward the legal status of a child. In a guardianship, the court and guardian will control most aspects of the ward’s life.
• In deciding whether to grant a guardianship petition, the court can award guardianship to a person or organization other than the petitioner. It is possible for the court to appoint a complete stranger to serve as guardian for a ward.
• If a guardianship is granted, the court will usually be involved for the remainder of the ward’s life. Once a guardian is appointed, it is expensive and difficult to have a guardian removed and replaced. It is also expensive and difficult to have a guardianship limited or terminated. All require further court action.

Parents are often led to believe that their children will need a guardianship when they become adults at age 19. For all the reasons outlined here, a guardianship should be a last resort. During a youth’s teen years, the youth and their family should start exploring the supports the youth might need as an adult to make important decisions regarding key issues such as health care, finances, education, and living arrangements. The family should explore alternatives to guardianship (outlined below). Self-advocacy awareness and skills training are an important part of a student’s special education programming and should be written into the student’s Individualized Education Program (IEP).

Even if a person with a disability needs help handling certain matters, this does not mean the person needs a guardianship. Decisions about guardianships should always be made on an individual basis, taking into consideration a person’s abilities, needs, and wants. Guardianship should be a last resort, used only when all less restrictive alternatives have been considered. Before a guardianship is pursued, a person with a disability and their family should explore ways to support the understanding, decision-making, and communication skills of the person with a disability so that the lowest level of intervention is used.

There are several arrangements that can be used as alternatives to guardianship, including designating or setting up the following:

• A representative payee for Social Security benefits (handled through the Social Security Administration)
• A person to act as a representative for other government benefits (handled through that particular government agency)
• A power of attorney
• A health care proxy
• Joint ownership on a restricted bank account (handled through that financial institution)
• Trustee (handled through execution of a trust document)
• Conservator (handled through a court proceeding)
• A Supported Decision-Making Agreement (see below)

In addition, where a guardianship is being considered, Alabama law prefers that guardianships are limited in scope so that the ward retains, as much as possible, the right to make decisions. Where a full guardianship is not necessary, the court must limit the powers and duties of the guardian by creating a limited guardianship. In a limited guardianship, the court’s order and letters of guardianship state the limitations to the powers and duties that have been granted to the guardian. For example, a court’s order and letters of guardianship could state that the ward will retain the right to decide where the ward will live. Alabama law also provides for limited conservatorships. For example, the court may limit a conservatorship so that the conservator only manages payment of the ward’s living expenses.

Most persons with disabilities, if appropriately supported, can make and communicate important decisions about their own lives. This includes decisions about their living arrangements, personal relationships, healthcare, daily activities, money, and work.

The Colby Act, enacted into law in Alabama in 2023, allows an adult to enter into a Supported Decision-Making (SDM) agreement with trusted family members, friends, or community members who will help and advise that person as they make certain important life decisions – while not impeding the person’s right to make the decisions they want.

Supported decision-making recognizes the reality that many adults, including those with disabilities, need help making decisions about how they are going to live their lives and handle things like their health care, finances, or employment, but that these persons don’t necessarily need a guardian to make these decisions for them.

The Colby Act was named after self-advocate Colby Spangler. Colby, a resident of Shelby County, worked tirelessly to promote the legislation that bears his name after his own experience of successfully using SDM for several years.

Here are some key features of the Colby Act:

• SDM is a voluntary option available to adults at least 18 years old.
• An SDM agreement focuses on important life decisions related to health care, financial decision-making, living arrangements and community engagement, education, or employment.
• SDM helps the person make decisions but does NOT remove the ability of the person to make the decisions they want to make.
• The person chooses who provides them with decision-making support.
• SDM must be memorialized in a written agreement, which can be changed or revoked as desired.

To learn more about SDM in Alabama, visit Alabama’s Working Interdisciplinary Network of Guardian Stakeholders (WINGS)

To learn more about Colby and The Colby Act check out his story here.

To learn more about SDM in general, visit National Resource Center for Supported Decision-Making.

In most cases, providers will readily accept consent given by a person with a disability.

However, sometimes providers hesitate or refuse to accept the consent of a person with a disability. As a matter of ethics and law, providers must follow their established informed consent policies to ensure that persons with disabilities fully understand and consent to what is to be done to and for them. Providers are careful about obtaining appropriate consent because there is a long and unfortunate history of persons with disabilities being subjected to procedures and experimentations without their full understanding and informed consent.

Informed consent policies of providers should be respected and supported. Informed consent problems can often be resolved through execution of simple documents like a power of attorney, health care proxy, or advance directive for health care. Such documents do not involve the court, are inexpensive, and are easily changed and terminated with little difficulty and without unnecessary involvement of attorneys and courts.

A guardianship should only be considered if:

• It is expected that you will need the power to exercise forcible custody over the person who is unwilling to cooperate
• You will need the power to make decisions that are contrary to the wishes of the person who is unwilling to cooperate with you
• You will be unable to secure necessary services, benefits, or care for the person without such power

However, a guardianship still should not be a default “just in case.” If an issue arises unexpectedly, and such power becomes necessary, relief can be sought as needed. Such relief could include emergency guardianship actions. In appropriate cases, guardianships can be obtained on the day they are sought. Such guardianships are often granted on an emergency basis. Such guardianships are often granted in advance of any notice or hearing, when necessary. In extreme situations, other extreme options are available. These include requests for police welfare checks, requests for police and emergency services assistance, or reports to the adult protective services division of the local department of human resources, etc. There are provisions allowing for temporary emergency appointments of guardians prior to notice and hearing.