Power of attorney, health care directive and guardianship in Alabama

Financial power of attorney in Alabama

Law and official form

Law

Alabama Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes

Official form

Alabama Power of Attorney Form (Ala. Code § 26-1A-301), with the Agent's Certification (§ 26-1A-302)Published by Alabama Legislature; no state agency copy found

You do not have to use it.

A document 'substantially in the following form may be used'. It covers property only, not health care. The form ends with a notary acknowledgment block and an information sheet for the agent.

Law: Ala. Code §§ 26-1A-101, 26-1A-103 (Act 2011-683); Ala. Code §§ 26-1A-301, 26-1A-302

Signing rules

How to sign

The Act requires only your signature. If you acknowledge your signature before a notary public, the signature is presumed genuine, and banks and others get the protections and duties that apply to an 'acknowledged' power of attorney. The statutory form includes a notary block.

Who signs

Signed by you, or in your conscious presence by another person you direct to sign your name.

Notary

Not required

Witnesses

None required

Agent's acknowledgment

No agent signature is required. A person accepts appointment by acting as agent or by other conduct showing acceptance, unless the document says otherwise.

Law: Ala. Code § 26-1A-113

Law: Ala. Code §§ 26-1A-105, 26-1A-119(a), 26-1A-301

Durable and springing

Is it durable?

A power of attorney under the Act is durable unless it expressly says it ends when you become incapacitated.

Law: Ala. Code § 26-1A-104

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

It is effective when signed unless it says it starts on a future date or event. You can name who decides that the event happened. If it starts on your incapacity and no one you named can decide, it starts when a physician or licensed psychologist, or an attorney, judge or appropriate government official, determines in writing that you are incapacitated.

Law: Ala. Code § 26-1A-109

What an agent can and cannot do

Needs express permission

• Create, amend, revoke or end a living (inter vivos) trust
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority granted under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Exercise fiduciary powers you have authority to delegate
• Make gifts beyond the limits in § 26-1A-217 (general gift authority covers only gifts up to the federal annual gift-tax exclusion per person)

No power of attorney can

Unless the power of attorney expressly says otherwise, an agent who is not your ancestor, spouse or descendant may not use it to give themselves, or someone they must support, an interest in your property. A power of attorney under the Act does not cover health care decisions; those are governed by § 26-1A-404 and the Natural Death Act.

Law: Ala. Code § 26-1A-201(b); Ala. Code § 26-1A-103(b)

Law: Ala. Code §§ 26-1A-201(a), (d), 26-1A-217

Agent duties, pay and court review

Agent duties

• Act according to your reasonable expectations, if known, and otherwise in your best interest
• Act in good faith and only within the authority granted
• Act loyally for your benefit and avoid conflicts of interest
• Use the care, competence and diligence ordinarily used by agents
• Keep a record of all receipts, payments and transactions
• Cooperate with your health care decision-maker
• Try to preserve your estate plan, if known and in your best interest
• Disclose records within 30 days when asked by you, a guardian, conservator or other fiduciary, a protective agency, a court, or after death your personal representative

Agent pay

Unless the power of attorney says otherwise, an agent is entitled to reimbursement of reasonable expenses and to reasonable compensation.

Law: Ala. Code § 26-1A-112

Asking a court to review an agent

You, the agent, a guardian or conservator, your health care decision-maker, your spouse, parent, descendant or presumptive heir, a beneficiary, a protective agency, your caregiver, a person asked to accept the power of attorney, or anyone else with sufficient legal interest can ask a court to construe it, decide whether it is valid, or review the agent's conduct. The court must dismiss the petition if you ask, unless it finds you lack capacity to revoke.

Law: Ala. Code § 26-1A-116

Law: Ala. Code § 26-1A-114

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• It says it ends, or its purpose is accomplished
• The agent dies, becomes incapacitated or resigns, or you revoke the agent's authority, and no other agent is named
• A court-appointed fiduciary (such as a conservator) revokes it
• An action is filed for divorce, annulment or legal separation from an agent who is your spouse

Divorce ends a spouse's authority

Yes · Divorce rules in Alabama (Divorce Law Map)

How to revoke

You can revoke a power of attorney or an agent's authority. The Act does not set a required method. Signing a new power of attorney does not revoke an earlier one unless the new one says so.

Telling others

Tell the agent and every bank or business that has a copy. An agent who acts in good faith without actual knowledge that the power of attorney or the agent's authority has ended is protected, and so is a person who relies on an acknowledged power of attorney without actual knowledge that it has ended.

Law: Ala. Code § 26-1A-110; Ala. Code §§ 26-1A-110(a)(3), (d), (f), 26-1A-119(c)

Banks, other states and real estate

Banks and other businesses

For a notarized (acknowledged) power of attorney, a person must either carry out the transaction or ask for an agent's certification, an English translation or a lawyer's opinion within a reasonable time (not less than 7 business days), and may not demand a different form. Refusal is allowed for listed reasons, for example a good-faith belief the power of attorney is invalid, or a report to the Department of Human Resources about possible abuse or exploitation. Wrongful refusal can lead to a court order to accept it and liability for reasonable attorney fees and costs. A photocopy or electronically sent copy has the same effect as the original.

Law: Ala. Code §§ 26-1A-119, 26-1A-120; § 26-1A-106(d)

Signed in another state

A power of attorney signed outside Alabama is valid in Alabama if, when signed, it complied with the law of the jurisdiction that governs its meaning (the one named in it, or where it was signed), the federal military power of attorney rules, or Alabama law.

Law: Ala. Code §§ 26-1A-106(c), 26-1A-107

Health care directive in Alabama

The document and its form

Document

Advance Directive for Health Care (Living Will and Health Care Proxy)

Official form

Advance Directive for Health Care (Living Will and Health Care Proxy), Ala. Code § 22-8A-4(h)Published by Alabama Legislature; no current state agency copy foundVersion: Statutory text (Acts 1997-187 and later amendments)

You do not have to use it.

Living will

Living will (Section 1 of the Advance Directive for Health Care)

Part of the directive.

In the living will part you say whether you want life-sustaining treatment and tube feeding if you are terminally ill or injured or permanently unconscious. If you have both a living will and a health care proxy, the proxy's decisions take precedence unless your documents say otherwise.

Law: Ala. Code § 22-8A-4(h); Ala. Code § 22-8A-4(a), (g), (h)

Signing rules

How to sign

Put the directive in writing, date it, and sign it in front of two qualified witnesses who are at least 19. If you name a health care proxy, the proxy must accept in writing, and the acceptance is attached to the directive.

Who signs

Signed by you, or by another person in your presence and at your express direction, and dated.

Notary

Not required

Witnesses

2

Who cannot witness

Two or more witnesses, each at least 19 years old. A witness may not be: the person who signed for you; your health care proxy; related to you by blood, adoption or marriage; entitled to any part of your estate under intestate succession or your will or codicil; or directly financially responsible for your medical care.

Law: Ala. Code § 22-8A-4(b), (c)

Who can be your agent and what the agent can do

Who cannot be your agent

Your health care provider, or a nonrelative employee of your health care provider, may not act as your health care proxy or attorney in fact for health care. The proxy must be a competent adult.

Law: Ala. Code §§ 22-8A-4(b)(4), 26-1A-404(c)(5)

When the agent starts

The advance directive becomes effective when your attending physician decides you can no longer understand, appreciate and direct your medical treatment, and two physicians (one the attending physician) have examined you and documented that you have a terminal illness or injury or are permanently unconscious. A health care attorney in fact under § 26-1A-404 acts when, in the attending physician's opinion, you can no longer give directions to health care providers.

Law: Ala. Code § 22-8A-4(d)

Decisions an agent cannot make

Tube feeding and fluids may be withheld or withdrawn only if the directive specifically authorizes it. An attorney in fact under a health care power of attorney may not consent to psychosurgery, sterilization, abortion not necessary to preserve your life, or involuntary hospitalization or treatment for mental illness, and may make life-sustaining treatment decisions only if specifically authorized and in the manner of the Natural Death Act. The directive has no effect during a known pregnancy.

Law: Ala. Code § 22-8A-4(a), (b); Ala. Code § 26-1A-404(c)(1)-(2); § 22-8A-4(e)

Revoking and conflicting documents

Revoking your agent

You can revoke the directive, including the naming of your proxy, at any time: by destroying or defacing it; by a signed and dated written revocation; or by saying so in front of a witness 19 or older who signs and dates a writing confirming it (a spoken revocation takes effect when the doctor or provider receives that writing).

Revoking your instructions

The same methods revoke the living will part.

Telling others

It is your responsibility to give copies of the directive to your doctor and providers; tell them and your proxy about a revocation. No one is liable for not acting on a revocation they did not actually know about.

Divorce ends a spouse's authority

Yes · Divorce rules in Alabama (Divorce Law Map)

Conflicting documents

If you have both a living will and a proxy designation, the proxy's decisions about life-sustaining treatment and tube feeding take precedence unless your living will or proxy designation says otherwise.

Law: Ala. Code § 22-8A-4(g)

Law: Ala. Code §§ 22-8A-5, 22-8A-4(b)(3), (f); Ala. Code §§ 26-1A-404(c)(3)

If you have no directive

Who decides without a directive

If there is no directive or no available proxy, a surrogate can decide about life-sustaining treatment and tube feeding, in consultation with the attending physician, but only if two physicians certify a terminal illness or injury or permanent unconsciousness and the other conditions in the law are met. The surrogate must certify, on a State Board of Health form signed before two witnesses at least 19, that people in equal or higher classes were contacted and consented or did not object.

• A court-appointed guardian specifically authorized to make life-sustaining treatment decisions
• Spouse (unless legally separated or in a divorce case)
• An adult child
• A parent
• An adult sibling
• The nearest surviving adult relatives
• If no relatives can be found, a committee of the treating physician and the facility's ethics committee, acting unanimously

Law: Ala. Code § 22-8A-11

Other states, registry and medical orders

Signed in another state

An advance health care directive signed in another state in compliance with that state's law or Alabama law is valid in Alabama, but it cannot authorize care that Alabama law prohibits.

Law: Ala. Code § 22-8A-12; § 26-1A-404(c)(13) for health care powers of attorney

Registry

Recording a living will with the judge of probate in your county

Fee: $5, plus any other recording fees set by law

Law: Ala. Code § 22-8A-14(b)

POLST (medical orders)

Portable Physician DNAR (Do Not Attempt Resuscitation) Order, on the form designated by the State Board of Health

Law: Ala. Code § 22-8A-14; Ala. Code § 22-8A-3(16)

Guardianship and conservatorship in Alabama

What guardianship or conservatorship is

What it is called

Guardian of an incapacitated person (general or limited); conservator of a protected person's estate

When a court may appoint one

An 'incapacitated person' lacks sufficient understanding or capacity to make or communicate responsible decisions because of mental illness, deficiency, physical illness or disability, advanced age, chronic drug use or intoxication, or other cause. The court must encourage maximum self-reliance and independence and make orders only to the extent the person's limitations require; it may limit the guardian's powers (limited guardianship). The person is examined by a court-appointed physician, interviewed by a court representative, and is entitled to a lawyer and, on demand, a jury.

Law: Ala. Code §§ 26-2A-20(8), 26-2A-102, 26-2A-105

Kinds

• General guardian
• Limited guardian
• Temporary guardian (emergency)
• Conservator
• Protective order or single transaction without a conservator

Law: Ala. Code §§ 26-2A-100 to 26-2A-111, 26-2A-130 to 26-2A-137

Who can ask, which court and your own choice

Who may ask

The incapacitated person or any person interested in their welfare. A custodial parent or adult custodial sibling of an adult child with an intellectual disability may file a simpler written request.

Law: Ala. Code § 26-2A-102(a); § 26-2A-102(e)

Court

Probate court of the county where the person lives or is present.

Law: Ala. Code § 26-2A-101

Choosing your own

In a power of attorney you may nominate a conservator or guardian; the court must follow your most recent nomination except for good cause or disqualification.

Law: Ala. Code §§ 26-1A-108(a), 26-2A-104(b)

Effect on a power of attorney

If a court appoints a conservator for all or nearly all of your property, the agent is accountable to the conservator as well as to you, and the conservator has the same power to revoke or amend the power of attorney that you would have. A durable power of attorney ends any supported decision-making agreement unless it expressly continues it.

Law: Ala. Code § 26-1A-108(b); § 26-1B-7(b)(7)

Cost, fee waiver and forms

Steps

Steps

Other options and where to report abuse

Supported decision-making

Colby Act (supported decision-making agreements), Ala. Code Title 26, Chapter 1B

Effective 2023 (Act 2023-134)

An adult may choose supporters to help them make, communicate and carry out their own decisions, as an alternative to guardianship or conservatorship. The adult may change or revoke it at any time in writing, with a copy to each supporter. Signing a durable power of attorney ends the agreement unless the power of attorney expressly continues it.

The agreement must be in writing, dated, and signed by the adult in the presence of a notary public, name at least one supporter (18 or older), describe the help each supporter gives, and include a signed consent from each supporter.

Source: Official text

Less restrictive options

• Durable power of attorney: An agent you name can handle money and property without a court case; you can also nominate your future guardian or conservator in it.
• Advance directive and health care proxy: Your written wishes and proxy can guide end-of-life care without a guardian.
• Supported decision-making agreement: You keep the right to decide and choose supporters to help.
• Protective arrangements and single transactions: The probate court can authorize a single transaction or protective arrangement instead of appointing a conservator.
• Limited guardianship: The court may limit a guardian's powers to what the person cannot do.

Report abuse or exploitation

Alabama Department of Human Resources, Adult Protective Services · 1-800-458-7214

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: Ala. Code §§ 26-1B-1 to 26-1B-10

Good to know in Alabama

• Alabama advance directive witnesses must be at least 19, not 18.

  Law: Ala. Code § 22-8A-4(c)(4)

• Tube feeding may be withheld or withdrawn under a living will or by a proxy only if the document specifically authorizes it.

  Law: Ala. Code § 22-8A-4(a), (b)

• You can record a living will with your county probate judge for a $5 fee plus other recording fees; it is not open to the public.

  Law: Ala. Code § 22-8A-14

• A health care proxy must accept the appointment in writing, attached to the directive.

  Law: Ala. Code § 22-8A-4(b)

Changes in 2024–2026

Act 2026-488 (effective January 1, 2027) repeals Ala. Code § 26-2A-107 and adds § 26-2A-107.1 on temporary or emergency guardians for adults (a hospital may petition), and amends §§ 26-2A-20, 26-2A-103, 26-2A-134 and 26-2A-136. The Colby Act (supported decision-making) was enacted in 2023. Act 2022-434 amended the surrogate law.

Law: Act 2023-134; § 22-8A-11

Questions about powers of attorney in Alabama