- What is a guardian?
When a person can’t take care of themselves or manage their finances, the court can name a guardian to protect them. A guardian has the power and responsibility to make certain decisions for the person under guardianship.
A Limited Guardianship or Limited Conservatorship is when a guardian or conservator is given the power to make decisions in only some areas of a person’s life. The court looks at what the person who needs the guardian (called the ward) can and can’t do to see what areas they need help with.
A Full Guardianship or Full Conservatorship is when a guardian is given the power to make decisions about almost all of the person’s life. This is usually done as a last resort when there are no other options to help a person.
The hope is that the person under guardianship can work on getting well enough to be able to manage their personal affairs as much as possible.
In a guardianship or conservatorship, the person who needs help does not lose important rights, like the right to vote or the right to privacy. But sometimes the court can take away those rights if there is a good reason to. The court needs to order it specifically.
- Who may need a guardian?
Someone who is:
- dealing with failing physical health and not taking care of themselves
- losing mental ability to function well
- not functioning well socially
- not able to take care of their financial affairs, putting them at serious risk of financial disaster or financial exploitation.
- When else is a guardian needed?
A guardian can be appointed by a court to help manage the needs of a disabled person who can’t manage their own affairs. Disabled means the person is so impaired that they:
- don’t have the understanding or ability to make or communicate safe personal decisions
- can’t meet their own needs for medical care, food, clothing, shelter, or safety
- can’t take care of their finances, even if they have help.
There is a court process that decides if a person is disabled.
- What is the difference between guardianship and conservatorship?
In a guardianship, the person doing the helping is called the guardian. The person who needs the help is called the ward. The court decides if it the guardianship is “limited” or “full.” Unless limited by the court, the Guardian has complete control making decisions for the ward like:
•where to live
•who they can spend time with
•money decisions that affect any property owned by the ward
In a conservatorship, the person doing the helping is called the conservator. The person who needs the help is called the ward. A conservator only looks after the financial affairs of the ward. They have power over the ward’s estate, taking care of things like bill paying and managing income.
Naming a guardian or conservator for someone is seen by the court as a serious step. The court looks at ways to help the ward with the fewest limits possible.
- Are there other ways to take care of a person’s financial or care needs?
Some things to think about trying before filing for guardianship or conservatorship include:
- Durable Power of Attorney (DPOA)
A DPOA is a legal document that a person signs to give another adult the power to make decisions for them. The person giving the power is called “the principal.” The person getting the power to make decisions is called “the attorney-in-fact.” Make sure the DPOA has information about the power to sell property and the power to make decisions about living arrangements.
- Living Will
A Living Will says what medical care a person wants if they get to a point of being permanently unconscious or too terminally sick to communicate their wishes about ongoing treatment. But the Living Will is not used if the person can communicate their decisions. They can accept or refuse any medical treatment.
In Kentucky, a Living Will lets a person leave instructions in 4 areas:
1. Name a Health Care Surrogate – this is a person who makes decisions about healthcare when the person can’t.
2. Refuse or ask for life prolonging treatment
3. Refuse or ask for artificial feeding or hydration (tube feeding)
4. Name a representative payee for social security benefits or veterans’ benefits
These documents must be written up and signed by the person while they are able to understand what the documents say.
- How is a guardian or conservator appointed?
To start the process of appointing a guardian or conservator, file a Petition to Determine if Disabled in court. The person who may need the guardianship is called the Respondent. Take the petition to the district court to file it. Usually, the petition is filed with the court in the county where the Respondent lives. At the same time, the person who wants to be the appointed guardian or conservator files a form called Application for Appointment of Fiduciary for Disabled Persons.
A medical doctor, a psychologist, and a social worker do evaluations of the Respondent. Those evaluations are also filed with the court. If no lawyer files to represent the Respondent within 1 week, the Court appoints one.
A trial is held before a judge and jury. The jury decides if the Respondent is legally disabled and if so, to what level. The jury also decides if the Respondent can or can’t take care of their own needs, financial affairs, or both.
The judge decides who to appoint as the guardian or conservator and enters an order naming them.
- What are the powers of the guardian?
The guardian makes decisions for the ward about:
- care and comfort
- medical treatment
- health care decisions
- living arrangements
- educational and social
- vocational and rehabilitation services
The guardian also protects and manages the ward’s property and financial affairs. This includes paying the bills, making sure the ward gets the benefits they should, and filing and paying taxes.
The guardian has to talk to the ward and follow their wishes as much as possible. The guardian has to act in the ward’s best interest.
- What are the powers of the conservator?
The conservator protects and manages the ward’s property and financial affairs. This includes:
- paying the ward’s bills
- making sure the ward gets the benefits they should
- filing and paying taxes
The conservator is not responsible for caring for personal issues like finding housing or getting food and clothing.
- Can the judge appoint more than one guardian or conservator at the same time?
The judge can appoint co-guardians, but it is best to have only 1 person at a time be the guardian. Having just one guardian avoids the possibility of conflict between the guardians and is less confusing for the ward and court.
It is a good idea for the judge to appoint a standby guardian when the first order is entered. A standby guardian can take over on a permanent basis if the original guardian can no longer help, resigns, dies, or is removed. You don’t need a court hearing for the standby guardian to take over, but the standby guardian must file a written statement with the court saying that they accept the role.
- Does the guardian or conservator have to use their own money to take care of the ward?
No. The guardian or the conservator does not have to use their own money. They use ward’s money to pay expenses. BUT they do have to tell the court what money came in, how it was spent and why. They usually file an annual report about money to the court every year. If the guardian or conservator doesn’t use the money in the right way, they can be held personally responsible.
- How Long Does the Guardian/Conservator Appointment Last?
A guardian or conservator is usually appointed without an end date. But the judge can set a limited appointment. A limited guardian or limited conservator appointment can’t be for more than 5 years.
- I have been taking care of my disabled child and now they are turning 18. Do I need to have the court appoint me as guardian or conservator?
If your child has a lifelong permanent mental or physical disability, you need to be named guardian or conservator by a court when they turn 18.