Fiduciary is a general term for the person appointed by the District Court to act on behalf of a respondent, the individual who was found to be legally disabled through a court process. This court-designated responsibility requires the utmost in honesty and dedication to the person being served. Kentucky provides for several types of fiduciaries based upon the level of disability determined by the jury in the court action:
Once the presence of disability has been determined by the jury, the judge must make an immediate appointment. In the meantime, an applicant will have asked the judge to be appointed as fiduciary. Often this is the petitioner who filed for disability determination, but not always. Some of the considerations of the judge in appointing a fiduciary include:
Under the circumstance that there is no one willing or able to serve in this capacity, the judge will appoint the Cabinet for Health and Family Services as the state or public guardian of the ward. Once appointed by the District Court judge to serve as a fiduciary, the fiduciary takes on a strong personal involvement in the life of the respondent, the person that the jury has determined to be in need of support. This support may include making decisions on health care, where to live, who will provide care, how best to meet the respondent's nutritional needs and financial management of the respondent's assets. The support provided by a fiduciary often results in the respondent being able to stay at home and the risk of exploitation by others can be reduced.
Because this responsibility to protect ultimately rests with the District Court, the fiduciary is a part of the legal system and is subject to reporting requirements. Within 60 days of appointment by the judge, a fiduciary must provide a full inventory of the respondent's estate to the court. The property of a respondent is held by the fiduciary as a “Trust” and must be accounted for periodically. Avoidance of conflict of interest is critical and the respondent's interests are always put above the fiduciary's. If a decision under consideration will benefit the fiduciary at the same time that the respondent's interest is adversely impacted, the fiduciary should not act unless approved by the court.
The fiduciary is empowered to spend the respondent's estate (income, savings and investments, public benefits – Social Security, Medicare and Medicare Supplement, Social Security Disability Insurance, Supplemental Security Income, Medicaid and HUD Housing Vouchers) and manage their property. Fiduciaries are empowered to create a Special Needs Trust or participate in a Pooled Special Needs Trust. Under some circumstances the fiduciary will be required to seek court approval to create such a trust. All fiduciaries are entitled to be paid for their services and Kentucky laws are explicit on the allowable amounts.
The Kentucky Guardianship Association (KGA) is a nonprofit membership organization committed to improving adult guardianship in Kentucky. Visit the KGA website at www.kyguardianship.org and watch our video with its easy-to-understand overview of Kentucky guardianship law. Our meetings and trainings assist our membership with understanding Kentucky guardianship law and provide continuing education for the various disciplines that have a role in guardianship. Download the KGA handbook, the Kentucky Guardianship Manual, that details the guardianship/fiduciary process in Kentucky from start to finish.
At the Kentucky Guardianship Association, we understand the difficult emotional and legal challenges faced when considering guardianship for a loved one. Taking on the role of fiduciary is another challenge that must be faced. It is easier to navigate Kentucky guardianship law when you partner with the resources at Kentucky Guardianship Association. Our meetings and trainings assist our membership to understand Kentucky Guardianship law and provide continuing education for the various disciplines that have a role in guardianship, including fiduciaries.