Alabama § 26-2-2 - Removal of Guardianship or Conservatorship from Probate to Circuit Court.

§ 26-2-2. Removal of Guardianship or Conservatorship from Probate to Circuit Court.

(a) For all guardianships, conservatorships, and other protective proceedings commencing before January 1, 2027, the administration or conduct of any guardianship or conservatorship of a minor or incapacitated person may be removed from the probate court to the circuit court, at any time before the final settlement thereof by the guardian or conservator of any such guardianship or conservatorship or guardian ad litem or next friend of such ward or anyone entitled to support out of the estate of such ward without assigning any special equity, and an order of removal must be made by the court or judge upon the filing of a sworn petition by any such guardian or conservator or guardian ad litem or next friend for the ward or such person entitled to support out of the estate of such ward, reciting in what capacity the petitioner acts and that in the opinion of the petitioner such guardianship or conservatorship can be better administered in the circuit court than in the probate court.

(b) The following shall apply to all guardianships, conservatorships, and other protective proceedings commencing on or after January 1, 2027:

(1)a. Except for a proceeding pending in a probate court in a county where the probate court or judge of probate exercises equity jurisdiction concurrent with that of the circuit court, a proceeding in a probate court under this chapter or Chapter 2A may be removed to the circuit court for the county where the proceeding in probate court is pending at any time before the probate court has taken steps toward a final settlement.

b. Removal under this subdivision may be done by any of the following parties:

1. The guardian, including any emergency or temporary guardian appointed by a court of competent jurisdiction and any guardian appointed in another jurisdiction for the person who is the subject of the proceeding.

2. The conservator, including any emergency or temporary conservator appointed by a court of competent jurisdiction and any conservator appointed in another jurisdiction for the person who is the subject of the proceeding.

3. The alleged incapacitated person, prior to a determination of incapacity.

4. The guardian ad litem or attorney for the person who is the subject of the proceeding.

5. An agent acting under a facially valid durable power of attorney executed prior to the commencement of any such proceeding by the person who is the subject of the proceeding.

6. Any facility, including, but not limited to, a hospital as defined in Section 22-21-20, in which the person who is the subject of the proceeding resides or has been admitted as a patient.

7. The next friend of the person who is the subject of the proceeding.

8. The Department of Human Resources.

9. Any person entitled to support out of the estate of the person who is the subject of the proceeding.

10. The spouse of the person who is the subject of the proceeding.

(2) To remove a proceeding from the probate court to the circuit court, the removing party shall file in the circuit court to which the proceeding is being removed a notice of removal that contains all of the following:

a. A description of the nature of the proceeding being removed.

b. Whether a jury trial is demanded under Section 26-2A-35.

c. The removing party’s interest in the proceeding being removed.

d. The name of all interested persons to the proceeding being removed to which the removing party is delivering the notice of removal.

(3) Following the removal to the circuit court, the removing party shall file a copy of the notice of removal with the clerk of the probate court and shall send a copy of the notice of removal to all interested parties listed in the notice. Upon receiving a copy of the notice of removal, the probate court may not take further action unless and until the removed proceeding is remanded, except to deliver a copy of the record in the probate court to the clerk of the circuit court.

(4) The circuit court shall have jurisdiction of a removed proceeding upon filing of the notice of removal with the circuit clerk. None of the following may deprive the circuit court of jurisdiction to hear and decide the removed proceeding:

a. The omission of any information required to be included in the notice of removal.

b. An incorrect statement of any information required to be included in the notice of removal.

c. The failure of the probate court to deliver a copy of the record of proceedings in that court.

(5) If a necessary party to the proceeding does not receive notice of the proceeding as required by law before the notice of removal is filed, the removing party shall cause notice of the proceeding to be issued to the necessary party as provided in the Alabama Rules of Civil Procedure or as otherwise provided by law.

(6) The circuit court may remand a proceeding removed under this section to the probate court if the circuit court finds any of the following:

a. The removal was sought for purpose of improper delay.

b. The removal did not comply with applicable law.

c. Judgment on all contested matters pending before the circuit court is final and: (i) the time for an appeal expired without the filing of an appeal; or (ii) if an appeal was filed, there is a final adjudication of the appeal.

d. All interested parties or their representatives have requested the removed proceeding be remanded to probate court.

(7) Following remand by the circuit court, the clerk of the circuit court shall deliver a copy of the order of remand and the record of all proceedings in the circuit court to the clerk of the probate court, to be filed with the records of the proceeding in the probate court. The probate court shall proceed with the proceeding in accordance with the circuit court’s order.

(8) In any proceeding removed from a probate court, the circuit court may issue all necessary orders and process to bring before it all proper parties, whether served by process issued by the probate court or otherwise.

(9) Neither remand nor anything else shall prevent the subsequent removal of a proceeding to the circuit court under this section.