A Family Guide to Guardianship in Kentucky: Questions and Answers
What is Guardianship?
When is a Guardian Needed?
Who Can Seek Guardianship?
What is the Procedure When the Person Needing a Guardian is a Minor (under age 18)?
What is the Procedure When the Person Needing a Guardian is an Adult?
What About a Power-of-Attorney (POA)?
What is a guardianship?
A Guardian is a person appointed by a court to manage the affairs of a child, an incompetent adult, or any one else who does not have the ability ("legal capacity") to manage their own affairs. A Conservator, appointed in the same way, is someone who manages only the financial affairs of such a person, who is called the "Ward".
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.
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 is the procedure when the person needing a guardian is an adult?
If the person needing a guardian is an adult, the state of Kentucky "prosecutes" the court action, and there is a jury trial, because putting an adult under guardianship involves the loss of civil rights, and seriously changes the adult's status under the law.
There are three steps:
- First, a Petition is filed.
- Then an Evaluation is done.
- Finally, a Hearing is held.
The Petition is filed in the District Court of the county where the Respondent lives. The petition is filed on a form that can be obtained from the clerk of the court.
The County Attorney represents the state of Kentucky. If the Petitioner (the interested family member or other person) wishes to be represented at the hearing, they must have a separate attorney. During the court proceeding, the person for whom a guardian is sought is referred to as the "Respondent". The Respondent must be represented by an attorney. If they do not have an attorney, one will be appointed for them. If the Respondent has the ability to pay for the appointed attorney, they will be billed for the services. If not, the county will pay for the attorney. If the judge decides that the petition was filed without good reason, the person filing the petition can be forced to pay the Respondent’s attorney’s fees.
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.
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.
The guardian must file periodic reports with the court detailing all actions taken as Guardian. The Guardian can be held personally responsible for the actions they take as Guardian.
What about a power-of-attorney (POA)?
A valid durable POA may prevent the necessity of seeking guardianship. "Durable" means that the document remains effective even if the person granting the Power of Attorney becomes incompetent. There must be language clearly stating that the POA is durable; without such language, a POA becomes ineffective at the exact time most people are needing it most -- when they cannot manage things themselves.
For a Power of Attorney document to be effective, the person granting it must be competent when signing it.
Guardianship can and sometimes must be sought despite the existence of a valid POA, if the POA does not cover areas that need assistance. Some POA documents nominate a person to serve as guardian should one be needed. While this nomination would not be binding on a court, it gives the court guidance as to the Respondent’s wishes.
Reviewed August 2009