What is the role of the Fayette County Attorney?
When a petition is filed, the state of Kentucky (our office) “prosecutes” the court action.
If you have a loved one who is incapable of appropriately providing for his or her daily needs (such as health, safety, food, or hygiene) or who is incapable of managing his or her personal finances, then he or she may be declared disabled or incompetent in Kentucky. This population is particularly vulnerable to exploitation and abuse; seeking the legal authority to prevent such exploitation is often the best option and our office would be glad to discuss the possibilities with you.
The Fayette County Attorney helps people who are seeking guardianship or conservatorship for disabled loved ones in Fayette County. Kentucky requires a jury trial (in some cases a bench trial) to declare someone disabled. Our office presents the case to the jury and advocates for the appointment of a guardian or conservator.
What is guardianship?
In Kentucky, guardianship is a legal relationship between a court-appointed adult who assumes the role of guardian for a ward. A ward is a person who has been declared legally disabled by the court and is no longer able to care for his or her personal and/or financial needs. A guardian may be a friend or family member who is willing to care for the disabled individual. If there is no one willing to care for the disabled person, the court will appoint the Cabinet for Health and Family Services as the state guardian.
The duties of the guardian include:
Full Guardianship/Full Conservator – The guardian is responsible for the personal and financial needs of the ward. A court has found the ward fully disabled and all personal and financial rights are removed except the right to vote. The judge decides whether or not a ward retains the right to vote.
Personal Guardian – A court finds the ward fully disabled in his/her personal affairs and appoints a personal guardian who is responsible for only personal affairs of the ward.
Conservator – A court finds the ward fully disabled in managing his/her financial affairs and appoints a conservator who is responsible for financial or fiduciary affairs of the ward.
Limited Guardian – A limited guardian may be appointed if the disabled person is declared partially disabled and can manage some personal needs but may need assistance with others. In this case, the court will also decide which civil rights the person can retain and which are given to the guardian. These may include the right to vote, the right to drive a car, the right to make medical decisions and the right to determine where to live.
Limited Conservator – A limited conservator may be appointed if the disabled person only needs help with managing some financial or fiduciary affairs. In this case, the court will also decide which civil rights the person can retain and which are given to the conservator. These may include the right to sell property and the right to sign legal documents such as checks, marriage licenses or wills.
Where and How to File?
Fayette District Court
Mental Health Division
150 N. Limestone Street
Lexington, Kentucky 40507
Hours of Operation: Monday – Friday 8 a.m. – 4 p.m.
When filing a Petition, you must bring with you:
- $68 filing fee per applicant
- List of Respondent’s financial assets (income, real-estate, stocks etc.)
- Proof of the respondent’s social security number
- Names and addresses, including zip codes, of respondent’s next of kin
A terrific pamphlet for anyone thinking of applying for guardianship: click here
For more information on the responsibilities of serving as a guardian please go to http://www.kyguardianship.org/
Cabinet for Health and Family Services, Division of Guardianship: click here
Guardianship Petition Process
There are three steps:
First, a Petition is filed.
Then an Evaluation is done.
Finally, a Hearing is held.
If the petition is approved, the respondent will be appointed an attorney to represent his or her interests. This attorney is referred to as the Guardian Ad Litem. Petitioners may choose to retain their own private attorney but need not do so.
The trial should be scheduled within 60 days. In this time the next step is the selection of a three-member team composed of a physician, psychologist and social worker to examine the Respondent. The team evaluates the Respondent’s condition and reports to the court. The assistance of the Petitioner may be required to co-ordinate the selection of the team and to schedule the evaluations. The report of the interdisciplinary team must be final before a hearing can be held.
It is the petitioner’s responsibility to insure that the respondent is available to be evaluated by the team members.
In addition, it is also the petitioner’s responsibility to insure that the respondent be present at the hearing.
The physician team member, however, may determine that attendance at the hearing would subject the respondent to serious risk of harm and waive his or her appearance.
The individual or persons appointed as guardian will need to be insured or bonded in the amount of the respondent’s assets. A list of bonding companies is included in the petition paperwork. It is recommended that petitioners contact insurers for information before the trial.
Guardianship requires a jury trial. All proceedings are confidential and limited to petitioner and those friends and family that the Respondent may wish to have present. Petitioners will likely be asked to testify as will at least one member of the interdisciplinary team.
A Hearing before a judge and jury must be held before a guardian can be appointed. The jury decides by clear and convincing evidence if a guardian should be appointed for the Respondent. The judge then selects the Guardian and sets the limits on the Guardian’s power. In selecting a person to serve as guardian, the court will consider the relationship between the person and the Respondent, the person’s business and financial ability, education, and ability to meet the demands of the job. The judge will seek to select the best-qualified person to serve.
Juries may decide financial and personal affairs on behalf of the Respondent. For each issue, juries will determine either “No Disability”, “Partial Disability”, or “Full Disability.”
What are the financial costs involved in a Disability Proceeding?
The total costs, including the interdisciplinary team fees, usually range from $500 to $1500.
The fees will either be paid by county funds or from the ward’s funds depending on the estate of the ward. This determination is made by the Judge after the trial.
When is a guardian needed?
A guardian may be needed when a person is unable to decide upon or take action needed to protect their health, safety, or well-being, The inability to look after their own interests may be due to the person’s age or illness, or because they never had such ability in the first place. Merely spending one’s money unwisely is normally not enough to require a guardian. When a person cannot understand the amount of their income or assets, or what their financial obligations are or how to meet them, the appointment of a guardian may be appropriate. However, the need for guardianship may be avoided by careful planning, including the use of a durable power-of attorney.
What is the Difference Between a Regular Trial and an Emergency Hearing?
$ 87 fee (cash or check) per applicantA notarized letter from the respondent’s physician stating his or her diagnosis, prognosis and whether or not he or she can safely attend the hearing.Proof of respondent’s social security number.Relevant documents (unpaid bills, medical documentation, etc.).
- The court shall appoint a Guardian Ad Litem to represent the interests of the respondent.
- An emergency hearing will be scheduled within two (2) to seven (7) days.
- At this hearing the judge, without a jury, will listen to the evidence and decide if an emergency exists. If an emergency appointment of a guardian is made, it will only last until the jury trial (following this appointment the Regular Petition Process begins).
Who can seek guardianship?
Any adult can seek to have a guardian appointed for another person. Most often a guardianship is requested by a family member, but guardianship can be requested by any interested person.
What is the procedure when the person needing a guardian is a minor (under age 18)?
The person wishing to be appointed the child’s guardian files a Petition and an Application with the district court in the county where the child lives, and the court, after a hearing at which the child’s best interests are considered, appoints a guardian. If the child is 14 years of age or older, the child may nominate their guardian themselves.
What are the Emotional Consequences involved in a Disability Proceeding?
The respondent must participate in three evaluations and the petitioner must bring the respondent to court.
The respondent must sit through a jury trial that will focus on his or her inability to make personal and financial decisions.
The petitioner may be required to testify and state the facts that led him or her to believe that the respondent is unable to make informed decisions.
Do I have to file Financial Reports?
• the partial guardianship is not renewed
the ward dies