An Alabama Conservator and the Protected Person's House: Repairs Without an Order, and the Contract Trap

Alabama is the only state in this series where the same sentence appears twice in the code with opposite effect. "Make ordinary or extraordinary repairs or alterations in buildings or other structures" is a transaction requiring prior court approval when the owner has died, and a power the fiduciary simply holds when the owner is living. Which side of that line a property sits on decides how quickly anything can be done to it.

The Conservator's Powers Are Broad By Default

Section 26-2A-152(a) opens wide: "Subject to limitation provided in Section 26-2A-154, a conservator shall have all of the powers conferred in this section and any additional powers now or hereafter conferred by law on trustees in this state." Subsection (b) adds that a conservator may invest and reinvest estate funds as a trustee would, without court authorization or confirmation.

Subsection (c) then enumerates. The items that bear on a building the protected person owns are specific and unqualified:

• (8) "Make ordinary or extraordinary repairs or alterations in buildings or other structures"
• (17) "Insure the assets of the estate against damage or loss and the conservator against liability with respect to third persons"
• (18) "Borrow money for the protection of the estate to be repaid from estate assets or otherwise; advance money for the protection of the estate or the protected person..."
• (21) "Pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate"
• (6) Acquire an asset for the estate, including land in another state, and "manage, develop, improve, partition, or change the character of an estate asset"

Note what sits outside that list. Item (7) permits disposing of "an asset, other than real property, of the estate" — the power to sell real property is not granted by that subdivision. A conservator who can repair a house without an order cannot, on the strength of (7), sell it.

The Same Words, the Other Way Round

Set the conservatorship provision beside the decedents' estate provision and the contrast is exact. Section 43-2-844 is headed Transactions Authorized for Personal Representatives; Prior Court Approval, and provides that "[u]nless expressly authorized by the will, a personal representative, only after prior approval of court, may ... (2) Make ordinary or extraordinary repairs or alterations in buildings or other structures."

Identical language, opposite posture. For a decedent's estate, repairs are gated behind the will or an order. For a living protected person, repairs are a power the conservator holds from appointment. The practical consequence is a difference in speed: on a conservatorship, a deteriorating roof can be addressed on the conservator's own authority; on an estate, the same roof waits for the will to be read or a petition to be heard. Anyone working both sides in Alabama should check which regime a property is under before assuming what can be done.

The decedents' side is set out at Alabama estate property: why repairs need a court order.

Limits Live on the Letters

The breadth of Section 26-2A-152 is not absolute, and Section 26-2A-154 is where it is adjusted. A court having equity jurisdiction may confer additional powers on a conservator at appointment or later, and may equally limit the powers otherwise conferred by Sections 26-2A-152 and 26-2A-153, removing or modifying any limitation at any time.

The sentence that matters operationally is the last one: if the court limits any power conferred by those sections, or specifies that title to some but not all assets vests in the conservator, "the limitation or specification of assets subject to the conservatorship must be endorsed upon the letters of appointment." A limitation that exists will be written on the letters. For a conservator, that is where to check what you actually hold; for anyone contracting with one, it is the document to ask for.

The Contract Trap

Section 26-2A-157 is headed Personal Liability of Conservator, and most of it is protective. Subsection (b) provides that a conservator is personally liable for obligations arising from ownership or control of estate property, or for torts committed in the course of administration, "only if personally at fault" — a fault standard, and a considerably softer one than Louisiana's rule that a curator is personally responsible for all damages resulting from a failure to act as a prudent administrator.

Subsection (a) is the exception, and it is procedural rather than behavioural: "[u]nless otherwise provided in the contract, a conservator is not personally liable on a contract properly entered into in fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity and identify the estate in the contract."

Read that as a drafting instruction. A conservator who engages a roofer, a grounds contractor or a security firm and signs in their own name, without stating that they sign as conservator and without identifying the estate, has stepped outside the protection — not because the work was improper but because the paperwork was. Subsection (c) allows claims of all three kinds to be asserted against the estate by proceeding against the conservator in a fiduciary capacity whether or not the conservator is personally liable, and subsection (d) sends any question of liability as between estate and conservator to a proceeding for accounting, surcharge or indemnification.

What This Means on a Protected Person's Vacant House

• Check the letters of appointment first — limitations on the Section 26-2A-152 powers must be endorsed there
• Repairs, insurance, taxes and borrowing for protection of the estate are available without a separate application
• Sign every engagement as conservator and name the estate in the contract; Section 26-2A-157(a) turns a naming failure into personal liability
• Selling the real property is a different question from maintaining it — subdivision (7) expressly excludes real property from the disposal power
• Keep the condition record and the invoices, because liability between estate and conservator is resolved in an accounting or surcharge proceeding under Section 26-2A-157(d)
• Where a limitation on the letters does bite, the route is Section 26-2A-154 — ask the court to modify it rather than working around it

For the equivalent regimes elsewhere, see a Texas guardian of the estate and a Louisiana curator and the interdict's property. The later states in the series are an Oklahoma guardian of the property, an Ohio guardian of the estate, a Pennsylvania guardian of the estate and an Arkansas guardian of the estate.