Adoption is truly one of the highlights of the Probate Court. Uniting families and placing children in homes with loving families are some of the more rewarding matters in the Probate Court.
Frequently Asked Questions
What is adoption?
Adoption is the legal procedure through which a minor is recognized by law as being the son or daughter of the adopting adult(s) and as having all of the rights and duties of such relationship, including the right of inheritance. The adoptee takes the name designated by the petitioner.
Who may adopt?
Any person who is 19 years or older may adopt a minor child. The Alabama Adoption Code specifically prohibits discrimination in granting adoptions on the basis of marital status or age.
Who can be adopted?
A minor, defined as being a person under the age of 19 years, may be adopted.
What steps are usually involved in an adoption?
- Pre-placement investigation (may petition Court or go to Department of Human Resources or a licensed child placement agency).
- All necessary consents and/or relinquishments concerning the adoption are obtained.
- Guardian ad litem is appointed when either natural parent of the adoptee is a minor or in the event of a contested hearing.
- Petition Court for authority to pay fees or expenses.
- Placement of child with petitioner.
- File petition for adoption 30 days after placement.
- Serve notice or obtain waiver of notice on or from all parties entitled to notice of the adoption.
- Post placement investigation.
- Affidavits of non-payment.
- Accounting of disbursements.
What is a pre-placement investigation?
Investigation conducted for the purpose of determining the suitability of each petitioner and the home in which the adoptee will be placed. The investigation will include a criminal background search and will focus on any other circumstances relevant to the placement of the adoptee.
Is it always necessary to have a pre-placement investigation?
Yes, unless the persons seeking to adopt is a close relative of the adoptee as listed in Alabama Code §§26-10A-27; 26-10A-28 (1975).
Whose consent to the adoption is required?
- The adoptee, if 14 years or older unless mentally incapable of giving consent.
- The adoptee’s mother.
- The adoptee’s presumed father if he meets the requirements set out in Alabama Code § 26-10A-7(c) (1975).
- The agency to whom the adoptee has been relinquished or which holds permanent custody except that a court may grant an adoption without the agency’s consent when it would be in the child’s best interest and the agency’s withholding of consent is unreasonable.
- The putative father if known; provided that he responds within 30 days after receiving notice of the adoption.
Can a minor consent to the adoption of his or her child?
Yes, however, prior to such consent the Court must appoint a guardian ad litem to represent the minor parent’s interests. A minor who is 14 years of age or older can nominate a guardian ad litem to protect his or her interests.
Can a person revoke a consent to adoption executed by him or her due to the fact that at the time the consent was given that person was a minor?
No, a consent or relinquishment executed by a parent who is a minor shall not be subject to revocation by reason of such minority.
When, where and in what form must a consent or relinquishment for adoption be given?
A consent or relinquishment for adoption may be given at any time. The pre-birth consent of the mother must be signed or confirmed before a probate judge. All other pre-birth or post-birth consent or relinquishments must be signed or confirmed before the probate judge or clerk of the Probate Court, or someone appointed by the agency conducting the investigation or a notary public. The consent or relinquishment must be in substantially the same form as provided in the Alabama Adoption Code and must be in writing and signed by the person consenting or relinquishing
When may a consent or relinquishment be withdrawn?
A consent or relinquishment may be withdrawn for any reason five days after the birth of the adoptee or five days after the signing of the consent or relinquishment whichever occurs later. The time to withdraw the consent or relinquishment can be expanded to 14 days if the Court finds that such delay is reasonable under the circumstances and is in the best interest of the child.
Where is a petition for adoption filed?
A petition for adoption may be filed in the Probate Court of any of the following counties: where the minor resides; where the petitioner resides or is in military service, or where the office of the agency or institution having guardianship or custody of the minor is located.
When is a petition for adoption filed?
The adoption petition must be filed within 30 days after the minor is placed with the prospective adoption parent(s) for adoption. If the person seeking the adoption is a stepparent or relative of the adoptee then the adoptee must reside with the petitioner for a year. The Probate Court, for good cause, may waive the residency requirement in stepparent or related adoptions.
Can I pay the parent of a minor or unborn child for the child?
No! An offer to make such payment is a Class A misdemeanor, to receive payment for a person’s consent to adoption is a Class C felony.
What expenses can I pay?
A person seeking to adopt a child may pay maternity-connected medical or hospital expenses and necessary living expenses of the mother preceding and during pregnancy and during pregnancy related incapacity as long as such payments are made as an act of charity and such payment is not contingent upon placement of the child for adoption. All fees and expenses, including legal, medical, investigative, or other legitimate professional fees may only be paid with the Probate Court’s approval.
How confidential is an adoption?
The Alabama Adoption Code was designed to keep an adoption as confidential as possible.
- Before a final adoption decree is rendered the only people with access to the adoption records are the petitioner, the petitioner’s attorney, the preplacement investigator, and any attorney appointed or retained by the minor being adopted. No other person has access to the adoption records unless they obtain a court order after showing good cause to allow them to inspect the records.
- All adoption hearings are confidential and held in a closed court proceeding open only to the interested parties and their counsel, except with permission of the Court.
- After the final decree of adoption is entered, all documents pertaining to the adoption are sealed and identifying information cannot be obtained by anyone except the adoptee under limited circumstances. (see below).
- The natural parent(s) may consent in writing under oath to disclosure of identifying information to the adoptee when such adoptee reaches the age of 19. The adoptee upon reaching the age of 19 may petition the Probate Court for disclosure of identifying information. Such information will not be released to the adoptee without the natural parent consent unless the court determines it is best after weighing the interests of the parties involved.
What is the difference between an adoption by a stepparent or close family member and other adoptions?
There is usually a lot less formality and requirements when the adoptee is being adopted by a stepparent or close family member. Unlike all other adoptions, usually no pre-placement or post-placement investigation nor accounting of the cost relating to the adoption are required. In order to be exempt from these requirements, the adoptee must have lived with the petitioner for at least one year.
The Alabama Department of Public Health has additional information for adoptees and parents of adoptees. Simply type “adoptions” in the search box on their Website: http://www.adph.org
Involuntary commitment is a legal procedure by which a person is placed in the custody of the State Department of Mental Health for treatment. This is done only if necessary and after every effort is made to provide treatment for the person on a voluntary basis. In order to meet the criteria for involuntary commitment, there must be clear and convincing evidence that the person is mentally ill and possess a real and present threat of substantial harm to self or others. Other required elements are that the person is unable to make a rational decision regarding the need for treatment and that without such treatment he or she will continue to suffer mental distress. The evidence brought forth by the petitioner must include personal knowledge of specific acts or behavior which signifies a real or present danger.
The petitioner is the individual who comes before the Probate Court and asks that measures be taken regarding a mentally ill person of at least 19 years of age. This is done in the county where the respondent is currently located. The petitioner is usually a family member, but any person may file a petition seeking commitment of another, provided that all the elements are met. Once the petition is filed, a hearing is then set within seven days, with notice given to all parties concerned, including the respondent. At the hearing, testimony is heard from all parties, and the Probate Judge determines whether the criteria for commitment have been met. Attorneys are appointed for both petitioner and respondent and all hearings are open to the public, unless otherwise requested by respondent. If an Emergency Order is needed, the Court must have a letter from a Physician stating an emergency exists.
If the criteria for commitment are met, then the Court will issue an order. Any treatment ordered must be the least restrictive alternative available and will take place at a designated mental health facility. The length of treatment is determined by the treating physician, and may be up to 150 days before a subsequent hearing on the merits will be necessary. If the criteria for commitment are not met, then the petition will be dismissed. At no time may the Court order treatment for substance abuse alone, however, there are occasions when a dual diagnosis of both substance dependence and mental illness is involved. In these cases, treatment for substance abuse must be voluntary, even if done simultaneously with psychiatric treatment.
The purpose of involuntary commitment is to provide psychiatric treatment for mentally ill individuals who have become a danger to themselves or others, and are refusing voluntary treatment. However, the Court is ever mindful of the serious deprivation of liberty which this process necessarily involves. The Due Process Clause of the Fourteenth Amendment to the U. S. Constitution applies to all citizens, whether mentally ill or not, and every effort is made to ensure that rights are not compromised and unnecessary treatment is never tolerated. The Probate Judge will always take the least restrictive measures to get help for a person with mental illness.
The statistics are one in five individuals will suffer from some form of mental illness in their lifetime. The numbers are even greater for the aging related illnesses of Alzheimer’s and other forms of dementia. This illness not only can devastate the afflicted person’s life, but also the lives of family members. The Probate court can help.
Frequently Asked Questions
What Should I Do If I Believe Someone Needs Treatment For A Mental Illness?
Call 911 for emergency assistance if the person is actively suicidal, dangerous, or if it is a medical emergency. If it is not an emergency, take the person to your local mental health center or mental health hospital if he or she will go voluntarily. If the person refuses help and you believe they are a danger to themselves or to others, contact the Probate Judge’s Office, Sheriff’s Office, mental health center, or your attorney for instructions on how to initiate an involuntary commitment proceeding.
What Is An Involuntary Commitment?
A procedure whereby a person is involuntarily placed in the custody of the State Department of Mental Health for treatment. A person cannot be committed due to a drug or alcohol problem. The law specifically states that such problems do not constitute a mental illness for purposes of this act.
What Elements Must Be Present In Order To Involuntarily Commit A Person To An Inpatient Mental Health Facility?
Clear, unequivocal and convincing evidence that:
- the respondent is mentally ill; and
- because of the mental illness the person poses a real and present threat of substantial harm to himself or to others; and
- respondent will continue to experience mental distress and deterioration of ability to function independently if not treated; and
- respondent is unable to make a rational decision regarding treatment.
A recent overt act of dangerousness is not required. Nonetheless, the court must be convinced that there is a substantial likelihood that the person possesses a danger to oneself or to others.
- treatment is available for the person’s mental illness or confinement is necessary to prevent the person from causing substantial harm to oneself or to others; and
- commitment is the least restrictive alternative available.
Who May File A Petition To Initiate An Involuntary Commitment Proceeding?
Any person may seek to have another person committed by filing a petition with the Probate Court in accordance with Section 22-52-1.2 of the Code of Alabama.
What Must The Petition Contain?
- name and address of the petitioner;
- name and location of respondent’s spouse, attorney or next of kin;
- that petitioner has reason to believe respondent is mentally ill;
- petitioner’s beliefs are based on specific behavior, acts, attempts or threats which are described in detail; and
- names and addresses of other people with knowledge of the respondent’s illness or who observed the person’s overt acts and who may be called as his witnesses.
Where Is The Petition Filed?
In the probate court in the county where the respondent is located.
Expert witnesses testify on a petition to commit since the petitioner must prove that the person is mentally ill and other elements that would seem to call for an opinion beyond that of a family member or friend.
A family member or friend may testify as to their opinion on a person’s sanity as long as they have had adequate opportunity to observe that respondent’s conduct is either normal or abnormal behavior.
A licensed general practitioner of medicine is considered an expert under Alabama law and may render expert testimony on a person’s sanity.
Must The Court Appoint Attorneys To Represent The Parties Involved In An Involuntary Commitment Proceeding?
- for the respondent: yes, if such person lacks the mental ability to secure the services of an attorney or if such person lacks the funds to employ an attorney.
- for the petitioner: yes, the court must appoint an attorney to advocate the petition to commit. The petitioner may employ an attorney on their own to appear in lieu of the appointed attorney.
- if petition is denied, the petitioners may be required to pay all costs of the proceedings.
To Whom Must The Court Send Notice Of The Commitment Proceeding?
Notice must be served on the respondent and the Mental Health Department or other facility where the petition seeks to have the person committed.
What Is The Procedure To Be Followed At The Hearing?
- the respondent has the right to be present unless waived (in writing) or presence would keep hearings from being conducted in an orderly manner, or the respondent’s attendance would be dangerous to the respondent’s physical or mental health.
- a hearing is to be held by probate judge without a jury.
- the hearings are to be open to the public unless requested otherwise by the respondent.
- a full transcript of the hearing must be kept for three years.
- the Alabama Rules of Evidence apply.
- the respondent has the right to offer evidence, and to compel witnesses and the right to cross-examine.
- respondent may testify in his own behalf but cannot be forced to testify against himself.
- commitment is granted only if the elements required for commitment are established by clear, unequivocal and convincing evidence.
What Are The Results Of The Hearing?
If commitment is granted, the order shall be entered for outpatient treatment or inpatient treatment. The least restrictive alternative necessary and available for the treatment of the respondent’s mental illness shall be ordered. Inpatient treatment may be ordered at a state mental health facility or a designated mental health facility. Outpatient treatment may be ordered at a designated mental health facility if said facility consents to treat the respondent on an outpatient basis.
Why Must The Preceding Procedure Be Rigidly Followed?
The preceding procedure sets out the minimum requirements necessary for the commitment process to be constitutional under the procedural and substantive due process clause.
What Follows An Initial Commitment?
- Initial commitment order valid for up to 150 days.
- state must file a petition for renewal within 30 days of expiration of initial order, stating in detail reasons for renewal.
- no renewal shall exceed one year.
- respondent must be released if renewal petition is not filed or is denied.
What Are Some Alternatives To Involuntary Commitments?
- Outpatient treatment; Group therapy; Individual therapy; or Medication
- Inpatient treatment — weekends;
- Respite bed in a transitional home;
- Group homes;
- Voluntary hospitalization;
- Nursing homes; or
- State homes.
NOTE: This list of alternatives is not an all-inclusive list. These alternatives vary as to the amount of supervision involved and whether that alternative is appropriate will depend upon the specific facts involved. Each of these alternatives are voluntary and require the approval of the person sought to be committed.
A will is a document which discloses how a person wishes his or her property to be distributed after death. A will must meet certain legal requirements. After a will is written, it should be kept in a safe place and the executors or personal representatives should be notified where the will is being kept. To determine if you should probate a will, contact an attorney for legal advice.
WHAT IS A WILL?
A will is a document that provides the manner in which a person's property will be distributed when he dies. A person who dies after writing a Will is said to have died testate.
WHO MAY MAKE A WILL?
In Alabama, the maker of a Will must be: (1) be at least 18 years old; (2) of sound mind; and (3) free from improper influences by other people.
HOW DO I MAKE A WILL?
A Will must meet certain requirements set by the State to be considered valid. The Will must be written, signed by the maker, and witnessed by two (2) people in the manner required by the law.
MAY I DISPOSE OF MY PROPERTY IN ANY WAY I DESIRE BY MAKING A WILL?
Almost, but not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. For example, a married person cannot completely exclude the other spouse from sharing in the estate. A lawyer can best explain all of the limitations.
HOW DO I KNOW IF I NEED TO WRITE A WILL?
Any amount of property which you own constitutes your estate. Generally, the size of your estate and your family circumstances determine whether you need a Will. An estate does not have to be any particular size to justify a Will. If you have young children, or property which you would like to assure will be given to certain people, then you should consider writing a Will.
WHEN DO I NEED TO WRITE A WILL?
A Will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.
WHO MAY DRAFT A WILL?
There is no requirement that a person consult a lawyer before drafting their own will. However, the proper drafting of a Will can be a delicate operation, and it is best to consult someone who has experience. A lawyer can make sure that your Will is legal, and that your property will be given to the people that you intended. A lawyer can also help construct a Will so that your family saves money in administering the estate, and reduces their taxes.
IS A WILL EXPENSIVE?
A lawyer will usually charge for a Will according to the time spent in preparing the Will. If you have a small estate and a simple plan for distributing your property, then your Will should cost less than one for a large, complex estate with several people receiving property.
MAY A WILL BE CHANGED ONCE IT IS WRITTEN?
A person may change his Will as often as he desires. However, the changes must meet the same requirements listed above for the original Will. No change should be made without first consulting the person who drafted the Will.
HOW LONG IS MY WILL "GOOD"?
A properly written and executed Will is "good" until it is changed or revoked. Writing a second Will usually revokes the first Will. However, if there is a change in your estate or your family makeup, you may consider changing your existing Will or writing a new Will. For example, if you sell your house you may need to change your Will to reflect the change in your estate.
WHAT SHOULD I DO WITH MY WILL ONCE IT IS WRITTEN?
Once you have written your Will, you should keep it in a safe place, such as a safety deposit box at a bank. You should also let your family know where the Will is so that they can find it when you die.
PROBATE OF WILLS
WHAT DOES PROBATE OF A WILL MEAN?
Probate of a Will is the administration of an estate to ensure that all of the property is disposed of properly. It is the Probate Judge's responsibility to make sure that all of the laws in Alabama regarding the distribution of estates are followed.
WHO SHOULD PROBATE A WILL?
Upon the person's death, anyone named in the Will either as personal representative or as a recipient of property, or any other person with a financial interest in the estate, or the person who has possession of the Will may have the Will proved before the proper Probate Court. Any person in possession of the Will must, by Alabama law, deliver the Will to the Probate Court or to a person who is able to have the Will probated. A person in possession of the Will can be required to produce it.
WHERE SHOULD A WILL BE PROBATED?
Generally, Wills must be filed for probate in the county where the deceased lived.
WHEN MUST A WILL BE FILED FOR PROBATE?
To be effective, a Will must be filed for probate within five years of the date of the testator's death.
DO I HAVE TO HAVE A LAWYER?
The complexity of handling estates normally necessitate having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.
DO I NEED TO PROBATE THE WILL?
Yes, the Will must be probated to have legal effect. Before deciding not to probate a Will one should consult an attorney.
ADMINISTRATION OF AN INTESTATE ESTATE
WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?
If someone dies without writing a Will, they have died intestate. Each state has specific laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The information shown below is extracted from the laws of Alabama, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, "issue" means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.
Property going to the surviving spouse:
entire estate if no surviving issue or parents of decedent;
first $100,000, plus of balance of estate if there is no surviving issue but there is surviving parent(s);
first $50,000, plus of balance of estate if there are surviving issue all of whom are also issue of surviving spouse; or
of estate if there are surviving issue who are not issue of the surviving spouse.
Property not going to surviving spouse:
If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If no issue, all property passes to the parents. If neither parent is living, the estate passes to siblings, and so on under this priority:
brothers and sisters
aunts and uncles
STEPS IN PROBATE OF AN ESTATE
Take immediate control of the estate
Inventory of the estate within 2 months
Notice must be given to all heirs
Letters of Testamentary granted
Notice to file claims must be published and individual notice given to anyone known to have a claim against the deceased
Claims must be filed generally within 6 months
Generally the estate cannot be divided until all claims and expenses have been paid which is at least six months
Court must approve administrator's fees
WHAT ARE THE POWERS AND DUTIES OF A PERSONAL REPRESENTATIVE?
Without court authorization, if the court has not limited the personal representative’s powers, the personal representative may:
perform deceased contracts
satisfy written charitable pledges
deposit funds in financial institutions
abandon valueless personal property
allocate expenses to income
borrow to protect estate
settle with debtors
pay taxes and expenses
sell or exercise stock options
enter leases up to one year
employ attorney, auditors
prosecute or defend claims
continue unincorporated business
incorporate the business
Note: The court may limit the personal representative’s powers on some or all of the items listed above.
With prior court authorization, the personal representative may:
abandon an estate asset
make repairs or demolish improvements
subdivide, dedicate land
leases greater than on year
enter mineral leases
sell real estate
pay compensation of personal representatives
CONSERVATORS & GUARDIANS
Conservatorships and/or Guardianships are generally involved hearings always requiring testimony and documentation before the Probate Court can appoint someone to one or both of these important and responsible positions. If a Conservator is appointed, a surety bond which serves to protect the assets of the minor or incapacitated person, will be required. An attorney can fully explain the probate procedures.
Frequently Asked Questions
What is a Conservator?
A person who is appointed by the court to manage the property of a minor or incapacitated person.
Who is an Incapacitated Person?
A person who is unable to manage property and business affairs because of:
- mental illness
- mental deficiency
- physical illness
- infirmities accompanying advanced age
- chronic use of drugs
- chronic intoxication
- detention by foreign power
Who can serve as a Conservator?
A family member or any interested person with the priorities as follows:
- conservator appointed in another jurisdiction
- person selected by incapacitated person
- person designated by incapacitated person’s power of attorney
- adult child
- relative with whom ward has lived last six months
- nominee of person caring for incapacitated person
- general guardian of sheriff
When can a Conservator be appointed?
A conservator may be appointed when an incapacitated person:
Is unable to manage property and business affairs; and
(a) has property that’ll be wasted without proper management; or
(b) funds are needed to support the incapacitated person or one entitled to support from the incapacitated person.
What are the powers and duties of a Conservator?
Without court authorization the conservator may:
- invest and reinvest funds
- retain assets
- receive additions
- acquire undivided interest
- deposit funds in financial institutions
- acquire property
- dispose of personal property
- make repairs to building
- enter leases up to 5 years
- enter mineral leases
- grant options up to one year
- vote securities
- pay assessments
- sell or exercise stock options
- deposit stock and bonds
- consent to reorganization, merger of a business
- insure assets
- borrow to protect estate
- settle claims
- pay reasonable annual compensation to conservator
- pay taxes and expenses
- allocate expenses to income
- pay sum of benefit of protected person or his family
- employ attorneys, auditors
- prosecute or defend claims
- execute and deliver appropriate instruments
- hold securities
- court may limit powers of conservator
With prior court authorization, the conservator may:
- continue or participate in operating business
- demolish improvements
- dispose of real estate
- subdivide, dedicate land
- leases greater than 5 years
- grant an option more than one year
- take an option to acquire property
Am I required to have a lawyer?
The legal complexity of guardianships and conservatorship normally necessitates having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.
What is the difference between a Guardian and a Conservator?
The guardian looks after the person and their welfare while a conservator looks after their estate.
What are the steps followed in appointing a Guardian or Conservator for an adult?
- petition filed
- appointment of a guardian ad item
- examination by physician
- appointment of court’s representative
- jury at hearing if demanded
- bond for conservator
- order granting petition
- Inventory of property for conservator
- letters of guardianship and/or conservatorship
Is a bond required?
Yes, a bond is required for conservatorship unless the bond requirement was waived in a will or power of attorney.
Is an inventory required?
Each conservator must complete an inventory of the estate immediately and file it with the court within 90 days after appointment.
Are accountings required?
Yes, a conservator must give an accounting to the court at least every three years. The court may order an accounting more frequently. An accounting is also required upon the resignation or removal of the conservator.
What is a Guardian?
The parent of a minor or someone who has been appointed by the court to be responsible for the personal care of an individual.
What is a Ward?
Legal name for a person for whom a guardian has been appointed.
Who can be a Guardian for an adult?
Any qualified person may be appointed. However, the law establishes the following priorities:
- person named in a durable power of attorney
- spouse or spouse’s nominee
- adult child
- parent of parent’s nominee
- relative with whom person has lived the prior 6 months
- nominee of caretaker of person
Who can be a Guardian for a child?
The court may appoint any person that’ll be in the best interest of the minor. However, if the minor is 14 years old or older, the minor’s nominee must be appointed unless the appointment is contrary to the minor’s best interest.
Also, a parental nomination has priority.
Can a parent appoint a Guardian?
Yes, in a will a parent may appoint a guardian for a minor child or for an unmarried incapacitated child.
Can a spouse appoint a Guardian?
Yes, in a will a person may appoint a guardian for his or her incapacitated spouse.
What are the powers of a Guardian?
- must assume responsibilities of a parent regarding support, care and education
- must become personally acquainted with ward
- must take reasonable care of ward’s personal effects
- must apply available money for current needs or health, support, education and maintenance
- must conserve excess money
- must report the condition of the ward to the court
- may receive limited funds for support of ward
- may take custody of ward and establish a home
- may compel payment of support
- may consent to medical care
- may consent to marriage or adoption
- may delegate certain responsibilities to the ward for the decision making
- court may limit powers of guardianship
When does a Guardianship end?
- upon death of ward
- upon resignation of the guardian
- upon adoption of the minor
- upon marriage of the minor
- upon minor becoming an adult
- when ward’s incapacity is terminated