Guardianship and Conservatorships over another person are available when that person is unable to take care of their personal and financial affairs. Proceedings to determine whether a guardian or conservator are needed, and appoint a guardian or conservator take place in the District Court where the person or Respondent lives. If you need assistance during this process, please contact the County Attorney’s Office at 859-581-8015.
Process to determine disability and obtain Guardianship/Conservatorship:
1. A petition, AOC Form 740, is completed and filed with the clerk of courts. Any person concerned with the welfare of the Respondent may file the petition. The form asks for information about where the Respondent lives, who is next of kin, and why a guardian or conservator is necessary.
2. At the same time the petition is filed, an application for emergency appointment, AOC Form 745, may be filed if necessary along with an application of appointment to fiduciary for disabled person, AOC Form 747, must also be filed by the person intending to be guardian or conservator of the Respondent. The person filing the petition, or Petitioner, will also need a written letter or note from a care provider to substantiate the need to appoint an emergency guardian/conservator.
3. If the Respondent does not have an attorney, the Court will appoint an attorney to provide representation. The Court will pay the lawyer’s fees if the Court determines the respondent is unable to do so. The County Attorney will represent the Commonwealth in this proceeding. The Petitioner is not required to have an attorney but may choose to do so.
4. After the Court reviews the petition and applications, the Court will designate an Interdisciplinary Team consisting of a Doctor, Psychologist, and Social Worker. Each member of this team will meet with Respondent and file a report consisting of their respective opinions.
5. Once the Court receives all three reports, the matter will be schedule for a jury trial in the District Court. The County Attorney, on behalf of the Commonwealth, and the Respondent’s attorney will present evidence from the reports. Upon conclusion of the trial, the jury will determine whether the Respondent is fully or partially disabled in personal and/or financial affairs. The Respondent must be present at the hearing unless the court determines that attendance would subject the person to serious risk of harm.
6. If the Jury finds that the Respondent is partially or fully disabled in either their personal or financial affairs, the Court will decide who will be the Respondent’s guardian or conservator. Upon selection the Court will file an order outlining the constraints of the guardian or conservator, if any. The court order will be filed with the court but must also be indexed in the county clerk’s office.
Frequently Asked Questions
What is a guardianship? A guardianship provides the guardian with decision-making authority and responsibility over the protected person’s personal affairs. Limited guardianship gives the guardian decision-making authority and responsibility over only selected areas that the protected person has been determined unable to manage by him/herself; for example, a limited guardianship may only apply to healthcare decisions.
What is a conservatorship? A conservatorship is similar to guardianship in that it is a legal relationship between a protected person and one or more individuals appointed by the court to make decisions on behalf of the protected person. However, while a guardianship may encompass all personal affairs (support, care, health, rehabilitation, therapeutic treatment, and if not inconsistent with an order of commitment or custody, the residence) of a protected person, a conservatorship is limited to the management of the property and financial affairs of a protected person. As with guardianship, a conservatorship may be full, limited, temporary, or joint.
Who can be a guardian/conservator? A family member or other interested individual may petition for the appointment of guardian/conservator for a protected person. However, when a relative or other appropriate person is not qualified or willing to act in this capacity, the Kentucky Cabinet for Health and Family Services may be authorized to act as guardian/conservator for persons under their care.
What are the duties of a guardian/conservator? A guardian/conservator must maintain regular and frequent contact with the protected person to become familiar with the protected person’s needs and limitations, and only exercise their decision-making authority to the extent required by those limitations. The guardian/conservator must respect the fact that their relationship with the protected person is a confidential one, and should encourage the person’s participation in decision-making to the extent possible. Obviously, the guardian/conservator must always act in the best interest of the protected person, and never become involved in a situation that might give the appearance of a conflict of interest. Finally, the court does require that the guardian/conservator provide some information to the court, including information pertaining to the protected person’s finances and personal inventory, and an annual personal status report.
The following forms may be required to be filed with the clerk’s office in order to start the guardianship/conservatorship process or maintain an appointment. If you need assistance completing the form, you can contact our office at 859-581-8015