We are here to help protect our most vulnerable adult citizens from abuse and exploitation. Loved ones who are unable to manage their personal or financial affairs are vulnerable to exploitation and abuse. Seeking conservatorship or guardianship over them is often the best option to protect them.
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.
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.”
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.
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.
$ 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.).
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.
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.
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.
Within 60 days of the appointment, the individual responsible for the ward’s financial affairs shall file an inventory of all of the assets/property of the ward with the court.
Within 16 months of the appointment the guardian or conservator must also file a financial report with the court. This report is an accounting of what income was received by the ward and how it was distributed.
Unless otherwise directed by the court, the same guardian/conservator must file a report every year thereafter.
Within 12 months of appointment, if the guardian is responsible for the personal matters of the ward, a report must be filed with the court detailing information on the ward’s placement, participation in programming and whether guardianship continues to be necessary.
A final report must be filed with the court within 60 days when:
- the guardian is removed
- the partial guardianship is not renewed
- the ward dies