Guardianship

In 1982 Kentucky passed a guardianship statute designed to address the sensitive issue of adult guardianships, recognizing that disabled persons have varying degrees of disability. The law seeks to protect those individuals from neglect, exploitation, and abuse, and was designed to encourage the development of maximum self-reliance and independence for each person.

What is a guardian?

There are several levels of guardianship. These include:

· Guardian:   Any individual appointed by the court to have full care, custody, and control of a disabled person and to manage his financial resources.

· Limited Guardian:  A guardian that possesses fewer than all of the legal powers or duties of a full guardian.  The court will specifically list the required duties.

· Conservator:  An individual appointed by the court to manage the financial resources of a disabled person.

· Limited Conservator:  An individual appointed by the court to assist in managing the financial resources of a partially disabled person.  The court will specifically list the required duties.

Unless specifically instructed by the court, a guardian must:

· Take custody and establish a home for the disabled individual.

· Make provisions for the disabled individual’s care, comfort and maintenance.

· Manage the financial resources of the disabled individual.

· Report annually to the court.

WHO IS CONSIDERED DISABLED?

A person is considered “disabled” under the guardianship statute if he or she is 17 years of age or older and is unable to make informed decisions about his or her personal day-to-day activities or financial affairs.  A determination of disability is a legal determination and not a determination of medical disability. 

WHO IS NOT CONSIDERED DISABLED? 

· A person that shows a single or isolated instance of negligent conduct or bad or inappropriate decision-making.

· A person that may be considered “odd” but only shows occasional negligent conduct or bad or inappropriate decision-making.

· A person that may have some paranoid delusions but has the ability to manage his or her day-to-day activities.

Emergency Guardianships

An emergency guardianship may be granted if there is a danger of serious impairment to the health and safety of an individual, or risk of damage or dissipation to the individual’s property. A regular petition for guardianship must be filed first, and the petitioner must then file a Petition/Application for Emergency Appointment (AOC Form 747). A hearing will be held within one week, and the Commonwealth has the burden of proving that an emergency exists.

Steps in a Disability Hearing:

1. Complete and file a Petition to Determine if Disabled (AOC-740) and an Application for Appointment of Fiduciary (AOC-745) with the Oldham County District Court.

2. After the petition is filed, the district court will appoint a team of three professionals to evaluate the person you seek guardianship of. 

3. The district court sets a hearing date for a trial. All three professionals must file their reports with the district court at least ten days prior to the hearing date.

4. An attorney will be appointed for the person you seek guardianship of. The County Attorney will represent the Commonwealth.

5. The jury will determine whether the person you seek guardianship of is wholly, partially, or not disabled.

6. If the respondent is determined to be disabled, the judge will appoint the most suitable guardian.