What does it mean to get a Guardianship over someone?
A Guardianship is when one person, the Guardian, is given control over another person, the Ward. The Guardianship may be a full Guardianship, or a Guardianship over financial matters only, called a Conservatorship.
In a full Guardianship, the Ward is placed in the legal position of a minor child. The Ward cannot sign contracts, write checks, or make financial decisions. The Ward cannot decide where to live, and cannot make any medical treatment decisions. However, the Ward may still be permitted to vote and the Judge has the authority to allow limited decisional authority depending on the specific circumstances of the Ward’s condition.
Therefore, a Guardianship is a very serious matter. Kentucky is the only State that requires a jury trial before a Guardian is appointed. This is a very important protection because it makes it more difficult for a greedy person to obtain control over the financial assets of an elderly person who may still have decisional capacity.
When is a Guardianship appropriate?
A Guardianship is most often needed when there is a severely disabled child who reaches the age of 18, when there is a severely brain injured adult, or when there is an adult with more advanced dementia or diminished capacity.
Anyone can apply to have a Guardian appointed over another person. When an application for Guardianship is made, the Court will appoint a Guardian Ad Litem [GAL]. The GAL is an attorney whose sole job is to watch out for the interests of the potential Ward. The Court also appoints three professionals – a physician, a psychologist and a social worker to evaluate the Ward and make recommendations as to whether or not a Guardianship is needed, and if so, whether it should be a full or partial Guardianship.
The three appointed professionals visit the Ward on separate days and at a different times of the day. Each professional writes a report on his or her findings, and a group report is then written.
A jury trial is scheduled with a jury of 6 people. At the trial, the attorney for the State presents the case for a Guardianship, one or more of the professionals testifies as to the findings of each of the professionals and the GAL may also present a case. The person for whom the Guardianship is being proposed is present at the trial as well, unless it would injurious to his or her health. The jury deliberates and makes a finding. The whole process in Court is often less than two hours.
If the jury decides that a Guardianship is needed, the Court then hears testimony as to who should be the Guardian. Often it is a family member, but if the Court does not feel that a family member is appropriate, an outside agency, most often GuardiaCare, is appointed.
The Guardian needs to make yearly reports to the Court to account for every cent that Ward has received and every cent that has been spent of the Ward’s money. The Guardian also reports to the Court on the well being of the Ward.
Both Rhoda and Bernard Faller, and Misty Clark Vantrease, have served as GALs for the Court. Kentucky ElderLaw, PLLC has also represented folks asking for a Guardianship and for folks opposing a Guardianship.
If you have questions or would like to schedule a free consultation with our Elder Care Attorneys at our Louisville office, please feel free to contact us, we’re here to help.