Removal of Guardianship to Circuit Court – § 26-2-2, Ala. Code 1975

Miles v. Helms, [Ms. 1200681, Jan. 21, 2022] __ So. 3d __ (Ala. 2022). The Court (Bolin, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) dismisses David M. Miles’s (“Miles”) appeal from the Houston Circuit Court’s order denying his postjudgment motion seeking to alter, amend, or vacate a judgment appointing a guardian for Nadine Chalmers, Miles’s aunt and by whom Miles had been appointed attorney-in-fact and healthcare proxy. The Court explains “the probate court entered a judgment on December 16, 2020, establishing a guardianship, appointing Helms as Chalmers’s guardian, and denying the petitions seeking the appointment of a conservator for Chalmers. Miles did not appeal that judgment. Instead, Miles filed a petition to remove the administration of the guardianship to the circuit court under § 26-2-2.” Ms. *11. The Court holds that Miles’s petition to remove the administration of the guardianship to circuit court was not effective because

When he sought to remove the administration of the guardianship from the probate court to the circuit court, Miles was not acting in any of the capacities listed in § 26-2-2. Those persons permitted to seek such a removal without assigning any special equity are: (1) the guardian of a guardianship, (2) the conservator of a conservatorship, (3) a guardian ad litem, (4) the next friend of a ward, or (5) a person entitled to support out of a ward’s estate. The probate court specifically declined to establish a conservatorship for Chalmers. Helms, not Miles, was appointed Chalmers’s guardian. Neither an attorney-in-fact nor a health-care proxy is one of the persons identified in § 26-2-2 as being able to remove the administration of a guardianship or conservatorship to a circuit court.

Ms. **11-12.

Consequently, the circuit court’s orders granting the petition to remove and subsequent order denying Miles’s motion to alter, amend, or vacate the probate court’s judgment are void and due to be vacated. Ms. **18-19. Because a void order will not support an appeal, the Court dismisses Miles’s appeal. Ms.*19.

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