Legal Disability

When adult guardianship is under consideration, KY statutes require that an individual's disability be legally determined.When adult guardianship is under consideration, Kentucky statutes require that this individual's legal disability be determined by a jury during a disability determination hearing. These laws are in place to protect individuals in order to assure that only someone who is determined to have a legal disability will have a guardian appointed.

When an adult begins to exhibit behavior that causes concern among loved ones, appointing a guardian may be the best option to protect that individual from physical harm, making poor decisions or exploitation by others.  The petitioner may have observed a significant change in attitude or habits. Basic questions to consider include: 

  •      *Does this person remain able to care for personal property?
  •      *Has this person's general health deteriorated?
  •      *Can this person adequately provide for their food, clothing and shelter needs?

The decision to pursue guardianship for an adult is not to be taken lightly or in haste and the court will always pursue the least restrictive alternative to provide protection for an individual.  Accordingly, the Commonwealth of Kentucky has a clearly defined process that begins with a determination of legal disability.  Any adult can seek to have a guardian appointed for another person but without a determination of legal disability, a guardian may not be appointed. Once a petition is filed (by the Petitioner), the person who may need a guardianship (the Respondent) will be scheduled for an examination by an Interdisciplinary Team (IDT). The team members, a medical doctor, a psychologist and a social worker, will each write a report and must agree on the presence of legal disability or the petition does not proceed.

A jury trial is held to hear proof of disability, generally presented by the County Attorney, regarding the Respondent. Based on clear and convincing evidence presented, the jury decides on the intellectual and functional capacity of the Respondent, whether the Respondent can make functionally informed decisions regarding personal affairs, health care and finance. The jury will then determine the presence and extent of disability (full or partial) and the areas in which the Respondent may need assistance.  This entire process is done with full confidentiality.

The judge will determine the responsibilities given to the Guardian, based upon the functional limits of the Respondent, and appoint the guardian. Guardian law in Kentucky requires that a guardian must periodically file reports with detail on any actions taken by the guardian, for which the guardian is held personally responsible.

The Kentucky Guardianship Association is a nonprofit membership organization committed to improving adult guardianship in Kentucky. Whether you are the Petitioner seeking guardianship for a person in need, a lawyer dealing with a guardianship matter, a social worker or other professional on the Interdisciplinary Team that gathers evidence to assist a determination of legal disability, the Kentucky Guardianship Association (KGA) is a helpful resource.  Our meetings and trainings assist our membership with its understanding of legal disability and guardian law. The KGA provides continuing education for the various disciplines that have a role in guardianship.  Its website, www.kyguardianship.org,  provides a video on its Resources page with up-to-date information and easy-to-understand overview of Kentucky law along with a downloadable handbook,  the Kentucky Guardianship Manual, that details the guardianship process in Kentucky from start to finish. You will find it easier to navigate guardian law and legal disability when you tap into the resources at KGA.