If you live in Kentucky and have a family member that is no longer capable of handling his/her day-to-day expenditures or paying the bills themselves, it may be time to consider a guardianship and/or conservatorship for that individual.
The most common circumstances in which there is a need for a guardianship or a conservatorship usually arises when there is not a valid power of attorney in place and the individual suffers from:
- Dementia or Alzheimer’s disease
- Severe autism
- Psychotic disorders, such as schizophrenia
- Bi-polar disorder
- Post traumatic stress disorder
- Severe substance abuse
- Other serious illness
- General incapacity
If your family member is no longer able to handle their day-to-day activities, has trouble paying bills, is not looking after their physical health, or is acting irrationally, it may be worth seeking help for them. That decision is a difficult one, but ultimately can greatly benefit the family member and provide stability to their life.
The AARP estimates that 1.3 million adults are under guardianship in the US. As the Baby Boomer generation ages, that number will inevitably go up. Understanding the legal options—and responsibilities—is key to making smart decisions about your future, and that of your loved ones.
There are two legal determinations when you take charge of a person’s decision-making—guardianship and conservatorship. Here is a brief overview of each:
What is a Guardianship?
“Guardianship” refers to a legal arrangement in which a person—often a minor or an adult who is unable to care for him – or herself—is placed under the supervision of a “guardian”. This appointment is a legal transaction and made through the court. The legally appointed guardian then has the authority to make decisions for the person, including considerations of protection and care, and, in the case of a child, education.
Kentucky recognizes two primary forms guardianship: full and limited. Here is a brief description of both:
In order to determine that someone needs a full guardianship, the court must find that the ward is fully disabled. That means the person is incapable of managing their all personal affairs and a guardian is needed to take charge.
Legal guardians are required to fulfill certain responsibilities:
- Where the ward may reside
- Medical care
- Managing bills and payments
- Representing the person’s best interest when they are not able to
- Looking after the ward’s care, comfort, and maintenance
- Arranging for educational, social, vocational, and rehabilitation services
- Making end-of-life decisions
The determination of whether a full guardianship in Kentucky is required is made by a judge. That judge will also determine whether the ward can retain the right to vote.
In Kentucky, a “limited guardian” can be appointed by the court when someone is declared partially disabled. This means the person is capable of managing some degree of their own needs but will need some assistance with others. It is left to the courts to decide which rights—driving, medical and living decisions, as well as voting —can be maintained by the charge and which go to the guardian.
What is a Conservatorship?
Questions of guardianship revolve around a person’s ability to make decisions about where they live, how they are educated, and how they control their own medical, political, and personal decision-making.
By contrast, in Kentucky, a “conservatorship” dictates how exactly that person’s finances and investments are managed—and by whom.
If a Kentucky court finds a ward fully disabled in managing their financial affairs, they will appoint a conservator. The conservator is responsible for the financial and fiduciary matters of the ward. This appointment covers all investments from property to personal assets, any income the person may be receiving, and all of their debt. It’s important this conservator does not just protect the person’s existing property or estate, but that they also act in the best interest of the ward.
Many times the conservator and the guardian is the same person, but either way, the court must approve the appointment. The Court may also ask the conservator to provide proof that they are managing any and all assets in the ward’s best interest and provide surety for their duties.
A “limited conservator” can be appointed if the disabled person only needs help with managing some financial or fiduciary affairs. If that is the case, the court will also decide which other rights the person can retain and which are given to the conservator. These may include the right to sell property and the right to sign legal documents such as checks, tax returns, or leases. The powers granted to a conservator can be assessed and re-assessed by the court during the term of conservatorship.
The Court’s Perspective
Both guardianships and conservatorships are taken very seriously because the responsibilities directly affect the welfare of a person who is unable to perform these matters by themselves. These individuals are vulnerable and, therefore, the courts must look out for their best interest.
If you are concerned that a loved one has serious issues managing their own affairs and they have not appointed a surrogate or agent under a power of attorney to make decisions for them, it may be time to seek the appointment of a conservator or guardian. We are here to help guide you through the process and explain what is required clearly. Give us a call today at our Hopkinsville office for assistance.