September 05, 2018
Author: Amy E. Dougherty
Organization: Bluegrass Elderlaw, PLLC
Guardianships in Kentucky
In an elder law practice, attorneys see families with all levels of preparedness for the aging of their members. If there has been adequate planning and foresight, guardianships can generally be avoided through the use of robust powers of attorney. We should encourage our clients to plan for their own incapacity through executing powers of attorney which cover legal, financial, personal, and medical decisions. If not, then the putative ward and the family have to endure the often difficult and prolonged process of securing a guardianship so that decisions can be made and care taken of the elderly person.
Guardianships are public, restrictive, time-consuming, and expensive. They are often used, however, to bring accountability to the management of a ward or his or her assets, especially when there is conflict in the family over these issues. The court undertakes this conflict reluctantly and not always well. It is therefore important for those closest to the ward to work cooperatively and for the potential ward to realistically plan ahead.
The Kentucky legislature declared its purpose in establishing guardianships and conservatorships for disabled people. KRS 387.500 says “guardianship and conservatorship for disabled persons shall be utilized only as is necessary to promote their well-being, including protection from neglect, exploitation, and abuse; shall be designed to encourage the development of maximum self-reliance and independence in each person; and shall be ordered only to the extent necessitated by each person's actual mental and adaptive limitations.\"
The process and safeguards discussed herein are designed to meet this end. For your ease of reference I have included in this article the salient statutes regarding the guardianship process. I have also included handouts supplied by the Fayette County Attorney's office regarding the instructions for the petitioner and the instructions for the emergency guardianship process. I thank my law partner, Carolyn L. Kenton, for assistance with this material.
Guardianships for disabled adults are governed by KRS 387.500 to 387.990. Terms used in this process have very specific statutory definitions. Disabled means a legal disability measured by functional inabilities as applied to a person who is unable to make informed decisions with respect to his personal affairs to such an extent that he lacks the capacity to provide for his physical health and safety, including but not limited to healthcare, food, shelter, clothing or personal hygiene. Or unable to make informed decisions with respect to his financial resources to such an extent that he lacks the capacity to manage his property effectively by those actions necessary to obtain, administer, and dispose of both real and personal property. The definition of disabled also states that inabilities shall be evidenced by acts or occupancies within six months prior to the filing of the petition for guardianship and conservatorship and shall not be evidenced solely by isolated instances of negligence, improvidence, or other behavior. KRS 387.510(8).
A guardian is any individual, agency, or corporation appointed by the court to have full care, custody and control of a disabled person and to manage that person's financial resources. A limited guardian, by definition, is a guardian who possesses fewer than all the legal powers and duties of a full guardian and whose powers and duties have been specifically enumerated by court order. See KRS 387.510 (1), (3), (4).
The conservator, on the other hand, is appointed by the court to manage the financial resources of a disabled person. The appointment of a conservator makes the guardian a limited guardian.
2. APPLICATION PROCESS
The exclusive jurisdiction over all proceedings involving a determination of disability rests in the District Court. KRS 387.520. The disability proceeding itself is conducted before a six person jury who determines competency. KRS 387.570.
A petition for disability may be filed by any interested person or by an individual needing guardianship or conservatorship and must include among other things a description of the facts and reasons supporting the need for guardianship or conservatorship. The petition shall be accompanied by a verified application of the person or entity desiring appointment as limited guardian, guardian, limited conservator, or conservator and additional petitions may be filed prior to the date of the hearing by other persons desiring appointment. KRS 387.530.
There are three primary documents necessary to initiate the proceedings: (1) a petition to determine disability (AOC-740), (2) a petition to be appointed guardian (AOC-745), and (3) a petition to appoint the interdisciplinary evaluation team (AOC-750). A personal identifier data sheet is also required. These forms are available from the District Court Probate Clerk or can be found online at the Administrative Office of the Courts website. Forms on the AOC website: http://courts.ky.gov/resources/legalforms
Prior to a hearing on a petition, the interdisciplinary evaluation report shall be filed with the court. The report shall be complied by at least three (3) individuals, including a physician, a psychologist and a person licensed as a social worker or an employee of the Cabinet for Families and Children. The reports of the members of the evaluation team shall give an opinion as to whether guardianship or conservatorship is needed and reasons therefore. The respondent may file a response to the evaluation report no later than five (5) days prior to the hearing. The respondent may also secure an independent evaluation. KRS 387.540.
The respondent (prospective ward) shall be represented by counsel. Unless an appearance by private counsel has been entered on the respondent’s behalf, the court will appoint counsel. It is the duty of the county attorney to represent the interests of the Commonwealth, to assist the petitioner and to assist the court in its inquiry by the presentation of evidence. KRS 387.570. At the jury trial for disability, if the respondent is found not to be disabled or partially disabled, the petition shall be dismissed. If the respondent is found to be disabled or partially disabled, the court shall determine the type of guardian or conservator to be appointed, specify the respondent’s legal disabilities, appoint the individual or entity as the limited guardian, guardian, limited conservator or conservator and specify the duration of the term of the guardianship or conservatorship. KRS 387.580. This order is entered on AOC-775.
The court may appoint any suitable person or any entity, public or private, capable of conducting an active guardianship or conservatorship program. The court shall not appoint the Cabinet for Families and Children as guardian unless no other suitable person or entity is available and willing to be appointed. Prior to the appointment, the court shall make a reasonable effort to question the respondent concerning his preference regarding the person or entity to be appointed and preference indicated shall be given due consideration. If the respondent has designated another as his attorney-in-fact or agent by executing a power of attorney, that designation shall be treated as an indication of the respondent’s preferences to the person or entity to be appointed. KRS 387.600.
3. REPORTING AND MONITORING GUARDIANSHIPS
A guardian of a disabled person shall have the power and duty to take custody of the ward and to establish his place of abode within the state; to make provision for the ward’s care, comfort, and maintenance; to give any necessary consent or approval to enable the ward to receive medical or professional care, counsel, treatment or service; to act with respect to the ward in a manner which limits the deprivation of civil rights and restricts his personal freedom only to the extent the financial resources of the ward, and , unless a separate conservator has been appointed, to manage the financial resources of the ward. KRS 387.660. The care and control of a ward’s person and finances can be entrusted to a guardian, or these tasks can be separated into the care of the person performed by a guardian and the control of the ward’s estate provided by a conservator. If these duties are so separated, the guardian becomes a limited guardian whose appointment must be renewed for no more than five years at a time. KRS 384.510 (3)(4) and KRS 387.590(7).
A guardian is accountable to the court for his action as guardian of the person of the ward. A guardian shall file an annual report (AOC-790) with the court. The report must include the ward’s current mental, physical, and social condition, their address, a summary of the medical, social, education, vocational, and other professional services received by the ward during the reporting period. KRS 387.670.
It is the duty of the conservator to protect and preserve the estate, to retain, sell and invest the estate, to prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate’s assets. He or she may apply the ward’s money and property for the payment of debts, taxes, claims, charges, and expenses of the conservatorship and the ward. KRS 387.700. The guardian with financial responsibilities and the conservator must file an inventory of the assets coming under his or her control, with the court within sixty (60) days of appointment (AOC-855). He must keep a detailed record of all the transactions he has performed on behalf of the ward. He must file a biennial report specifying the amount and type of real and personal property remaining in his control or invested by him, the nature of such investment, and expenditures made during the previous two years (AOC-856). Any transactions requiring the sale of the ward’s property must first receive the approval of the court before the documents are executed. The conservator is well advised to seek the court’s permission or at least put the court on notice of any large or unusual transactions of funds, for example, any large expenditures on repairs of real estate.
Upon the termination of the conservatorship, whether because the court has declared the ward is no longer disabled or because of the ward’s death, the conservator shall submit a financial report and account to the court and pay over the ward’s estate to the person entitled to it (AOC-856). Upon approval of the report and account, the conservator shall be discharged and his surety, if any, will be released. KRS 387.710.
The Kentucky Guardianship Association, Inc. is an state-wide guardianship organization, established in October 2007, to “develop, promote, improve [the] practice in guardianship by developing educational and training programs to promote best practices in the life of persons subject to guardianship.” (Articles of Incorporation, Kentucky Guardianship Association, Inc. See their website at: www.kyguardianship.org .) In 2012, this organization produced a manual designed “to introduce Kentucky’s guardianship and conservatorship to the general public; provide a review of these processes for judges, attorneys, court personnel, legislators, and established guardians and conservators, and to be a resource for anyone seeking to understand or familiarize themselves with the process of conducting disability cases and understanding the alternates to the legal process for caregiving in Kentucky.” “Introduction,” Kentucky Guardianship Manual, 2012. A copy of this Manual is recommended for those seeking a more thorough understanding of the guardianship process and procedures. The manual can be obtained by contacting the organization.
4. AMENDING OR TERMINATING GUARDIANSHIPS
A disabled person, his or her appointed legal representative, or any other interested persons may petition the District Court for termination or modification of an order of disability or removal or replacement of the guardian. The petition must state the facts and reasons supporting the request. The petitioner shall, upon his motion, be entitled to have the motion for termination or modification determined by a jury. See AOC-790 and KRS 387.620. In our increasingly mobile society, many of us will be requested to assist clients with the transfer into Kentucky of an out-of-state guardianship or the transfer out of Kentucky of an in-state guardianship. The procedures for doing so are found in the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act codified in Kentucky as KRS 387.810 to 387.854. The procedures are similar to those for addressing interstate custody disputes for minors. Courts in both the receiving state and the transferring state have to be involved in the process.
Seeking to protect vulnerable adults through the guardianship process can be a valuable and rewarding part of an Elder Law practice.