The Guardianship Process in Kentucky
If a minor is left without parents to care for him or her, whether due to death, incarceration, institutionalization or some other disability, it may be necessary for a court to appoint a legal guardian to care for the child until he or she becomes an adult. Likewise, it is sometimes necessary to appoint a guardian for an adult who is either mentally incompetent to manage his or her own affairs or who has become incapacitated and incapable of making medical, legal and financial decisions.
Here we’ll give a brief overview of the legal process for obtaining a guardianship.
In the case of either a minor or adult guardianship, there is broadly speaking a three-step process: Petition, Evaluation and Hearing. The main difference is that in the case of an adult guardianship, the hearing is usually more complicated, since more is at stake concerning the legal rights and status of an adult versus a child. An adult guardianship proceeding involves a jury trial, and the case for guardianship must be proved by clear and convincing evidence, which is a tough legal standard higher than what is required in many other civil matters.
A Petition and Application for guardianship is filed in the District Court of the county where the subject of the petition, known as the Respondent, lives. Although most often a petition is filed by a family member, “any interested person” may actually file a petition to impose a guardianship on another.
The next step is for a team of experts to evaluate the Respondent to determine whether he or she is in need of a guardian. This interdisciplinary team is typically composed of a physician, a psychologist and a social worker who are knowledgeable in the particular type of disability at issue.
If based on the Evaluation report and other evidence, it is proven by clear and convincing evidence to a jury that the person is in need of a guardian, the judge will appoint a guardian and set the parameters for what the guardian may and may not do. In selecting a guardian, the judge chooses the person best qualified for the job, considering the following factors:
- Kinship to the respondent
- Education and business experience
- Capability to handle financial affairs
- Ability to perform the duties of a guardian as required by law
Durable power of attorney can avoid guardianship in the first place
While it is sometimes necessary to have a guardian imposed by the court, this procedure can usually be avoided if the respondent had a durable power of attorney in place before he or she became incapacitated. The durable power of attorney gives another person the ability to make the legal and financial decisions that a guardian would make. The benefit of having a durable power of attorney in place is that you get to decide on who will make these decisions for you, rather than having a judge decide on someone you may not have chosen for yourself.
At the Ruby Law Firm, our estate planning attorneys discuss and draft necessary powers of attorney as part of the estate planning process. Our lawyers also participate in the guardianship process as necessary, including representing parties seeking to establish or challenge a proposed guardianship. We serve clients in Louisville, Kentucky as well as Jefferson County, Oldham County and surrounding areas.