Adults are assumed to be capable of making decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court can appoint a “guardian” or “conservator” to assist the adult.
Guardianship consists of a legal appointed individual (the “guardian” or “conservator”) and a person who is no longer able to take care of his or her own affairs (the “ward”). The guardian can be authorized to make legal health care decisions for the ward. The conservator can be authorized to make legal and financial decisions for the ward.
The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to need guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
In the Commonwealth of Kentucky, anyone interested in the proposed ward’s well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s county of residence. A hearing is set by the Probate Court. The proposed ward is usually entitled to legal representation at the hearing.
At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.
Courts often give guardians broad authority to manage the ward’s affairs. In addition to lacking the power to decide how money is spent or managed, where to live and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver’s license. Guardians are expected to act in the best interests of the ward, but given the guardian’s often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they do not take advantage of or neglect the ward.
The guardian inventories the ward’s property, invests the ward’s funds so funds can be used for the ward’s support, and files regular and detailed reports with the court.
A guardian must obtain court approval for certain financial transactions. Guardians must file a periodic and annual accounting of the ward’s finances and how they were handled and utilized. Guardians must offer proof that they made adequate residential arrangements for the ward and that they provided sufficient health care and treatment services, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.
Alternatives to Guardianship
Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective.
Contact us to discuss alternatives to Guardianship or to assist in filing for Guardianship and/or Conservatorship.