When a person (“Person”) requires help to care for themselves or to manage his or her
affairs, the court will appoint a guardian and conservator (“G/C”). The conservator must provide a surety bond equal to the amount of assets the Person has plus 10%, and provide an account to the court, usually every 3 years. There is no requirement to account to the court for the behavior of the guardian who is charged to provide a safe environment for the Person.
What happens when the individual appointed as G/C does not do his or her job, and the Person’s funds are misused or he or she is endangered? The best solution is for another family member or friend to keep close watch on the Person, including how he or she is being treated and whether his or her funds are being managed properly.
If the family member or friend notices a problem the Guardian ad litem (“GAL”), who was originally appointed by the Court to represent the Person, should be contacted. However, the GAL may not be responsive, viewing his or her responsibility as having ended when the determination was complete. DHR or the Police can also be contacted, but the G/C may hide the issues and the Person may be unable to discuss them out of fear of the G/C or inability to articulate the problem.
A Petition can also be filed with the Court to review the situation. Normally, once a G/C is appointed, the Person can no longer engage an attorney for themselves as they cannot control the use of funds. The family member or friend must then advance funds to bring the Petition and request the Court for reimbursement, which it may or may not do.
When there is no one else who can help the Person, Alabama law provides the Person can file his or her own Petition and ask the Court to review the G/C’s action or lack of action. The Person can request a new G/C be appointed or, depending on his or her condition, request for the removal of a G/C altogether.
The Petition by the Person must include details about the treatment received, the misuse of funds and whom he or she wants appointed in place of the G/C. If the Person is bringing the action to terminate the G/C, the Petition should also include the reasons why the Person believes he or she no longer requires assistance. Providing a medical evaluation in any of these situations may be required, especially if the Person is requesting the G/C be eliminated or replaced. The Petition should also include witness affidavits attesting to the Person’s abilities to care for his or herself and the G/C’s behavior.
After a hearing, the Court will render its decision. If it is determined the conservator has mishandled the funds, they must be repaid. If the funds are not repaid, the surety on the bond will pay the Person and then sue the conservator for repayment. If it is determined the guardian has neglected or harmed the Person, the guardian will be removed and criminal action may be brought.
