Guardianship in Kentucky
Guardianship is a legal process by which a person’s rights to make personal and/or property decisions for himself or herself is taken away by a court and put in the hands of another person or entity. While guardianship can be an appropriate solution in some circumstances, it also presents dangers to elders and others who become subject to guardianship when it is used as a vehicle for the guardian to take advantage of the person they are supposed to protect. When a full guardianship is imposed on an individual, or “ward” as that person is referred to in a guardianship process, the ward becomes unable to make decisions regarding his or her finances, medical decisions, or enter into contracts. Although a court may appoint a friend or family member to serve as a guardian for a ward, a court may also grant guardianship to a public guardian or to a for-private guardian corporation, which services many wards and makes a profit off of controlling the ward’s assets. As you can well imagine, despite safeguards, the guardianship system presents great danger of abuse of a ward and misappropriation of the ward’s assets.
Know the Kentucky Guardianship Process
The process by which a Kentucky court will appoint a guardian is that a petitioner, which can be a family member or other person seeking a guardian for the potential ward, will file a petition in a Kentucky court asking for the court to appoint a guardian. The potential ward is the “respondent” in the action. The County Attorney will represent the Commonwealth of Kentucky in the guardianship action. A respondent can hire his or her own attorney, or the Commonwealth will provide an attorney, but in certain circumstances a petitioner may be forced to pay the costs of the respondent’s attorney fees. A physician, psychologist and social worker will evaluate the respondent to determine if it would be appropriate to appoint a guardian. Once this process is completed, a hearing will be held before a judge and jury who will decide whether a guardian should be appointed, and, if so, what powers should be given to the guardian over the ward.
Avoiding Guardianship through Careful Planning and Advocacy
A person may be able to avoid having a guardian appointed by signing a power-of-attorney before any guardianship proceeding is instituted, but a court may appoint a guardian if it determines that the power-of-attorney is not sufficient or effective. Working with an experienced probate attorney to set up options by which to manage your finances and personal decisions before a guardianship proceeding is initiated may be the best way to avoid such a proceeding, and, where one has been initiated, a good family law attorney can work with you to develop strategies to persuade the court that you are able to manage your decisions without the imposition of a guardian.
If you are the subject of a guardianship proceeding or would like to develop strategies to avoid a potential future guardianship proceeding, contact Lanna Kilgore PLLC, to schedule a consultation with a knowledgeable Kentucky estate planning and probate attorney.