What is the purpose of a Guardian? Who is it for, when is it needed, how does the process work and is there a way to avoid it? Beck & Lenox Estate Planning and Elder Law has sought a number of guardianships for family members of elder clients when it has become necessary. We came across an article, “Guardian process can be lengthy, difficult” from The News-Enterprise in Kentucky that provides some good information about the process.
Guardianship is a court proceeding restricting or removing the right of a person to manage their own affairs. Guardianship is not exclusive to elderly individuals, as it is often used to protect adults and older children with disabilities. Guardianship is mainly needed when the person is unable to manage their own finances, incapable of understanding the scope and consequences of making their own medical decisions or is at risk of exploitation due to diminished capacity.
Note: This particular article deals with guardianships in Kentucky. Each state may have slightly different laws. In Missouri, for example, a conservatorship is sought when financial affairs need to be managed; guardianships are sought for medical decisions and for all other daily activities. Click here for Missouri specific information from our Beck & Lenox website.
The process for obtaining guardianship for another person is complicated and takes at least several months before a guardianship order is entered into the legal record.
The first step is for the person who seeks guardianship for another person to file a petition with the District Court in the county where the impaired person lives. The person who files the petition is known as the petitioner and the person who needs the guardianship is known as the respondent. The petitioner is usually a family member but may also be a concerned person or an institution, like a nursing facility.
The petition is often paired with a request for emergency guardianship pending a trial. If the court doesn’t order the emergency order immediately, a short trial may be needed to get an emergency order. The court then sets a trial date and issues an order for an evaluation.
Different states have different requirements, which is why the help of an experienced estate planning attorney is needed. In some states, reports from three independent team members are needed: a healthcare professional, which is typically the respondent’s primary care physician; a mental health professional and a social worker, often from Adult Protective Services.
Each person from the team must conduct an independent evaluation and submit a separate report to the court with their findings and a recommendation. In some states, the guardianship moves to a trial, while in other states the trial is held in front of a judge.
If the guardianship is granted, by trial or by the judge, a guardian is appointed to make decisions for the person and a conservator is named. The conservator is in charge of the person’s finances. Both the guardian and conservator are required to file reports with the court concerning their actions on behalf of the respondent throughout the duration of their roles.
How can guardianship be avoided? It’s far simpler and less costly for the family to work with an estate planning attorney to have Durable Powers of Attorney and Health Care Power of Attorney documents created in advance of any incapacity. Paired with fully funded revocable living trusts, the family can have complete control over their loved one without court intervention.
These documents cannot be prepared after a person is incapacitated, so a pro-active approach must be taken long before they are needed. Beck & Lenox urges readers to, at minimum, get those power of attorneys done as soon as possible. You never know when something may happen to incapacitate a loved one.
Reference: The News-Enterprise (Sep. 24, 2022) “Guardian process can be lengthy, difficult”