2006 Alabama Code - Section 26-2A-102 — Court appointment of guardian for incapacitated person.

(a) Except as provided by subsection (e), an incapacitated person or any person interested in the welfare of the incapacitated person may petition for appointment of a limited or general guardian.

(b) After the filing of a petition, the court shall set a date for hearing on the issue of incapacity so that notices may be given as required by Section 26-2A-103, and, unless the allegedly incapacitated person is represented by counsel, appoint an attorney to represent the person in the proceeding. The person so appointed may be granted the powers and duties of a guardian ad litem. The person alleged to be incapacitated shall be examined by a physician or other qualified person appointed by the court who shall submit a report in writing to the court. The person alleged to be incapacitated also shall be interviewed by a court representative sent by the court. The court representative also shall interview the person who appears to have caused the petition to be filed and any person who is nominated to serve as guardian and visit the present place of abode of the person alleged to be incapacitated and the place it is proposed that the person will be detained or reside if the appointment is made and submit a report in writing to the court. The court may utilize the service of any public or charitable agency as an additional court representative to evaluate the condition of the allegedly incapacitated person and to make appropriate recommendations to the court.

(c) A person alleged to be incapacitated is entitled to be present at the hearing in person. The person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed physician or other qualified person and any court representative, and upon demand to trial by jury as provided in Section 26-2A-35. The issue may be determined at a closed hearing if the person alleged to be incapacitated or counsel for the person so requests.

(d) Any person may apply for permission to participate in the proceeding, and the court may grant the request, with or without hearing, upon determining that the best interest of the alleged incapacitated person will be served thereby. The court may attach appropriate conditions to the permission.

(e) The custodial parent or parents or an adult custodial sibling of an adult child who is incapacitated by reason of mental retardation, may file, in lieu of a petition, a written request to be appointed guardian of his or her adult child or his or her adult sibling in order to continue performing custodial and other parental responsibilities or family responsibilities, or both responsibilities, for the child after the child has passed his or her minority. The court may waive any or all procedural requirements of the Uniform Guardianship Act, including notice and service, and appointments, and interviews. The adult child alleged to be incapacitated shall have had an examination by a physician or other qualified person and furnish a written report of the findings to the court.

In lieu of a hearing, the probate court shall hold an informal hearing with the custodial parent or custodial parents or custodial adult sibling requesting the guardianship, the adult child for whom the guardianship is sought, and a guardian ad litem for the adult child chosen by the judge of probate.

Following the interview, the court may do any of the following:

(1) Issue an order appointing the custodial parent or custodial parents or custodial sibling as guardian of the adult child as in any other proceeding pursuant to this section.

(2) Deny the request for appointment as guardian pursuant to the special proceedings allowed only for a custodial parent or custodial parents or custodial sibling.

(3) Delay a determination on the request to gather additional information in compliance with one or more of the usual requirements for appointments, interviews, or examinations by physicians or other qualified persons.

(Acts 1987, No. 87-590, p. 975, §2-203; Act 2000-711, p. 1507, §1.)

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