Guardianship and Conservatorship

Every adult is assumed to be capable of making his or her own decisions. However, if an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, often called a "guardian." Guardianship is a legal relationship between a competent adult (the "guardian") and an individual who, because of incapacity, is no longer able to take care of his or her own affairs (the "ward").
*Other states may refer to a "guardian" as a conservator or a similar term.*

The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In Kentucky, a person appointed only to handle finances is called a "conservator."

Not all individuals are judged to be fully incapacitated. In these situations, the court may give the Guardian decision making power over only those areas in which the incapacitated person is deemed unable to make responsible decisions (a so-called "limited guardianship"). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

INCAPACITY

The standard under which a person is deemed to require a guardian differs from state to state. In Kentucky, the standard is also different depending on whether a complete guardianship or a conservatorship over finances is necessary. Generally, a person is judged to be in need of 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 bad 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 or she 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.

GUARDIANSHIP PROCESS

In Kentucky, anyone interested in another's well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the district court in the proposed ward's county of residence. Protections for the proposed ward vary greatly from state to state. In Kentucky, it is required that the proposed ward attend the hearing. The proposed ward is usually entitled to legal representation at the hearing. The court, in Kentucky, will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

If a court, through examination, deems the proposed ward as incapacitated and determines the extent of the incapacitation (full, financially, etc.) the court must then decide if the person seeking guardianship will be a responsible guardian. A guardian can be any competent adult - the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case he or she ever needs a guardian.

If a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states can appoint a public guardian or a publicly financed agency that serves this purpose. If two individuals wish to share guardianship duties, courts can name co- guardians. Often the court gives first consideration to those who play a significant role in the ward's life, those aware of and sensitive to the ward's needs and preferences.

GUARDIAN REPORTING REQUIREMENTS

Guardians are often given broad authority to manage the ward's affairs. 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, Guardians are held accountable for their actions and attempt to avoid abuse or neglect. Guardians who cannot prove that they have adequately cared for the Ward may be removed and replaced by another Guardian. The following are a few of the Court enforced requirements on Guardians:

  1. 1. The Guardian must inventory the ward's property, invests the ward's funds so that they can be used for the ward's support and file regular, detailed reports concerning each with the court.
  2. Court approval for specific financial decisions is required.
  3. Guardians must file an annual account of how they have handled the ward's finances.
  4. Some states required Guardians to file an annual report on the ward's status.
  5. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed.

ALTERNATIVE OPTIONS 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. These include:

Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated.

Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.

Conservatorship.  In Kentucky, this proceeding can be voluntary, where a person needing assistance with finances, petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.

Revocable Trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Call us today if you're looking for a professional, experienced Northern Kentucky or Cincinnati lawyer to help you with your guardianship or conservatorship questions.

 

 




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