File for Guardianship
Before starting the Petition process for Guardianship, it is important to determine whether less restrictive alternatives might be sufficient. These options include:
Power of Attorney
A competent individual may sign a Power of Attorney allowing another adult to handle their affairs while still maintaining their personal rights. A Power of Attorney does not require court involvement.
Health Care Surrogate
Adults may also designate a health care surrogate prior to incapacitation. This is similar to a Power of Attorney but focuses on medical decisions rather than financial affairs.
A consenting adult may designate a payee of government benefits (Social Security and Veterans’). The payee manages these funds on behalf of the individual. Payees are established through the specific agencies and not through the court system.
An aged or infirmed person may request a curator to manage their money through Probate court. A curator is accountable to the Probate court and must be bonded (insured) and file financial reports.
When should Guardianship or Conservatorship be considered?
Anyone with sufficient personal knowledge of a respondent’s functional impairment may file a petition for guardianship. It should be noted that physical disability alone is an insufficient basis for guardianship. Common diagnosis of those under guardianship include, but are not limited to, dementia, intellectual disability, traumatic brain injuries, and mental illness. Guardianship/Conservatorship grants a fiduciary legal authority to transact personal and financial business on behalf of another.
What are Guardianship and Conservatorship?
Guardianship/Conservatorship occurs when there is a legal finding that a disabled person (ward), is unable to make informed decisions about their personal and/or financial affairs. A guardian is appointed to handle personal affairs and/or a conservator is appointed to handle financial affairs.
The judge or a jury must determine if an individual is disabled. After the verdict, a judge will determine who will serve as guardian/conservator. In the event of a partial disability, the judge will decide which right(s) the ward retains (i.e. right to vote, drive, enter into contacts, etc.). The conservator must use the ward’s assets to provide food, shelter, clothing for the ward and the guardians must make decision about the ward’s personal needs including consenting to medical procedures, with some restrictions.
The Petition Process
Guardianship petitions are filed in the Mental Health Division of the Jefferson County Clerk’s Office located at 600 W. Jefferson Street - Room 3177, Louisville, KY 40202. Filing a guardianship petition requires the following:
• $100.50 filing fee (each applicant for appointment must pay a filing fee)
• List of Respondent’s income and financial assets
• Proof of the respondent’s social security number
• Names and addresses of respondent’s next of kin
Following successful application:
Petitions are reviewed to ensure they minimally meet statutory criteria on their face and guidance is offered in curing omissions.
A guardianship trial is scheduled within 60 days. The court appoints a Guardian Ad Litem to represent the respondent’s interests. Although not required, petitioners may choose to retain their own private attorney. The respondent must be examined by an interdisciplinary team composed of a medical professional, social worker, and psychologist. It is the petitioner’s responsibility to ensure the respondent is available for evaluation by the team members. Each team member prepares a report detailing their evaluation and recommendations about guardianship.
The physician team member determines whether the respondent’s attendance at the hearing would subject them to serious risk of harm or if their appearance will be excused. The petitioner is responsible for ensuring the respondent’s presence at the hearing if required.
The individual or persons appointed as guardian will need to be insured or bonded in the amount of the respondent’s assets (not including real property). A list of bonding companies is included in the petition paperwork. It is recommended that petitioners contact insurers for information before the trial.
A determination of guardianship requires a trial. All proceedings are confidential and attendance at the court proceedings are usually limited to the petitioner and next of kin. At the hearing, a determination of disability is made as it relates to personal affairs and financial affairs. If it is decided that either a partial or a full guardian is necessary in the respondent’s personal affairs or financial affairs, a guardian and/or conservator is appointed by the court.
What are the financial costs involved in a Disability Proceeding?
The total costs, including the interdisciplinary team fees, can vary but generally are in the range of $2000. Costs are paid out of the ward’s estate unless they are indigent, in which case, fees are paid by the county. This determination is made by the Judge after the trial.
What are the Emotional Consequences involved in a Disability Proceeding?
It may be painful or unpleasant to present or hear testimony about a respondent’s inability to make good decisions themselves.
The respondent may not always be happy about participating in the three separate team evaluations or attending court.
The respondent may find it disheartening to sit through a trial that focuses on his or her inability to make personal and financial decisions.
The petitioner may find it uncomfortable if they must testify about facts leading them to believe the respondent is unable to make informed decisions.
Who may Act as Guardian or Conservator?
After the disability trial, the court may appoint any person or any public agency to act as guardian or conservator. The law gives preference to family members, but the court will appoint the best person or public agency qualified and willing to serve. The court will also consider the wishes of the ward in this matter.
What is a Standby Guardian or Standby Conservator?
At the time that a guardian or conservator is appointed, or at a later date, the court may appoint another person as standby guardian or standby conservator to succeed the initially appointed guardian or conservator after a death, resignation or inability of the guardian to serve. A stand by guardian must sign off on the information provided in the Annual Report filed by the guardian.
The court can also appoint co-guardians. However, this is usually logistically impractical since both individuals must be present at all guardianship activities (i.e. signing checks, attending doctor’s appointments, etc.).
What are the duties of a Guardian/Conservator?
A guardian is responsible for the care and custody of the ward. Depending upon the specific rights taken away from the ward, the guardian’s duties may include:
• Arranging for a place for the ward to live
• Arranging for medical, educational, social, vocational and rehabilitation services
• Managing the ward’s financial resources and paying the bills of the ward. The court requires a conservator to open a guardianship checking account in the ward’s name.
Within 60 days of appointment, the conservator must file an inventory with the court which details all the assets of the ward.
The conservator must file a Periodic Settlement (financial report) with the court within 12 months of appointment and every 24 months thereafter. This report is verified with copies of statements from the guardianship bank account and details income received by the ward and disbursed by the conservator during the accounting period. Accurate record keeping is required when acting as a fiduciary.
Within 12 months of appointment and every 12 months thereafter, the guardian must file an Annual Report about the ward’s personal affairs. This report details information on the ward’s placement, participation in programming and whether guardianship continues to be necessary.
A final report must be filed with the court as soon as possible but no later than 60 days after:
• the conservator is removed/replaced
• the partial guardianship is not renewed
• the ward dies
What is the Difference Between a Regular Trial and an Emergency Hearing?
If it is believed that there is an imminent danger to a functionally impaired adult’s health, safety, or assets, a concerned individual may file a petition for an emergency guardianship hearing at the Mental Health Clerk’s Office of the Jefferson County District Court (600 W. Jefferson Street – Room 3177). Before filing an emergency guardianship, petitioners are advised to call the Jefferson County Attorney’s office at (502) 574-6336 to ensure their evidence appears to be minimally sufficient to meet the required burden of proof at the emergency guardianship hearing.
• The court shall appoint a Guardian Ad Litem to represent the interests of the respondent.
• An emergency hearing will be scheduled within two (2) to seven (7) days of the filing of the emergency guardianship petition.
• At this hearing the judge, without a jury, will listen to the evidence and decide if an emergency exists. If the court appoints an emergency guardian or conservator, their authority will last only until the trial date. The appointment of a regular guardian/conservator supersedes the appointment(s) at the emergency hearing.