Statutory Requirements For Petition To Remove Conservatorship To Circuit Court


Ex parte Tutt Real Estate, LLC, [Ms. 1190963, Mar. 26, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Sellers, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur; Mitchell, J., concurs specially) issues a writ of mandamus vacating the Hale Circuit Court’s order awarding Tutt Real Estate, LLC a commission smaller than the amount set out in an exclusive listing agreement. The order was entered in a guardianship that had been purportedly removed from the probate court. Ms. *2. The Court holds “[t]he removal petition in this case, being unsworn and failing to recite in what capacity Mark and Jessica were acting, is fatally defective and thus did not confer jurisdiction upon the circuit court.” Ms. *11. The Court explains

§ 26-2-2 [Ala. Code 1975] provides that … a petition for removal may be filed by only a “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.” In this case, the petition for removal did not comply with the first two requirements of § 26-2-2, because the petition was unsworn and did not recite in what capacity Mark and Jessica were acting. First, in order for a removal petition to meet the requirement of being “sworn,” a petitioner must make a declaration under oath that he or she believes, and has made sufficient inquiry to confirm, that the contents of the petition are accurate. Such a declaration must be properly acknowledged by a notary public or a judge…. Next, in seeking removal Mark and Jessica were required to state in what capacity they were acting .... This Court has made clear that a recitation of capacity is still required even if the petitioner has a blood relationship or is the next of kin to the protected person.

Ms. **9-10.

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