§ 26-2A-136 — Permissible Court Orders

(a) The court shall exercise the authority conferred in this division to encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person’s mental and adaptive limitations and other conditions warranting the procedure.
(b) The court has the following powers that may be exercised directly or through a conservator in respect to the estate and business affairs of a protected person:
(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice, the court may preserve and apply the property of the person to be protected as may be required for the support of the person or dependents of the person.
(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and business affairs of the minor which are or may be necessary for the best interest of the minor and members of minor’s immediate family.
(3) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court, for the benefit of the person and members of the person’s immediate family, has all the powers over the estate and business affairs which the person could exercise if present and not under disability, except the power to make a will. Subject to subsection (c), those powers include, but are not limited to, power to make gifts; to convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety; to exercise or release powers held by the protected person as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment; to enter into contracts; to create revocable or irrevocable trusts of property of the estate which may extend beyond the disability or life of the protected person; to exercise options of the protected person to purchase securities or other property; to exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; to exercise any right to an elective share in the state of the person’s deceased spouse and to renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer.
(c) The court may exercise or direct the exercise of the following powers only if satisfied, after notice and hearing, that it is in the best interest of the protected person, and that the person either is incapable of consenting or has consented to the proposed exercise of power:
(1) To exercise or release powers of appointments of which the protected person is done;
(2) To renounce or disclaim interests;
(3) To make gifts in trust or otherwise exceeding in the aggregate 20 percent of the year’s income of the estate; and
(4) To change beneficiaries under insurance and annuity policies.
(d) Except for the disability necessitating the appointment, a determination that a basis for appointment of a conservator or other protective order exists has no effect otherwise on the capacity of the protected person. A conservator has all the powers granted by this section, unless specifically limited by the court. A protected person does not have or possess powers granted to the conservator.

Legislative History

(Acts 1987, No. 87-590, p. 975, §2-307.)