The process of appointing adult guardianship begins when a petition is filed to determine if someone is disabled. This process moves with the assistance of the District Court Clerk, an office that handles all guardianship matters. While the District Court Clerk is not a lawyer, this office is trained to help the Petitioner understand what is needed to be done and to help the Petitioner monitor the case as it proceeds. Some of the larger counties in Kentucky have a Mental Health Clerk who does this work. Due to the sensitive nature of establishing guardianship, all matters related to this process are confidential.
The Commonwealth of Kentucky requires a guardian trial by jury in all guardianship cases. During the guardian trial the jury must decide, based upon clear and convincing evidence, if a guardian should be appointed for the Respondent (the adult person for whom guardianship is being considered). In order for a guardian to be appointed, the evidence presented in the guardian trial will be weighed by the jury as they determine full disability, partial disability, or that the Respondent is not disabled, in which case a guardian will not be appointed.
The evidence presented in a guardian trial relies heavily upon the findings of an interdisciplinary team comprised of a physician, a psychologist and a social worker appointed by the court. All of this evidence points to the functional level of the Respondent to provide for daily activities and their property. The physician assesses the medical condition of the Respondent. The psychologist assesses mental capacity. The social worker reviews the social and domestic environment in which the Respondent resides. If all three members of the team do not agree on the determination of disability, it is possible that the guardian trial will not take place. If there is agreement, it is the County Attorney who presents proof of disability based upon the reports of the Interdisciplinary team to the jury.
The Respondent requires an attorney to represent him/her during the guardian trial. If the Respondent cannot afford an attorney, the District Court will appoint an attorney. The Petitioner is not required to have an attorney but may chose to hire legal counsel. Upon review of the evidence presented in the trial, the jury will make its finding of full disability, partial disability, or no disability. At the conclusion of the guardian trial, based upon the decision of the jury, the judge is then tasked with appointing a guardian and establishing the limits on the guardian's power.
The requirement of a guardian trial in Kentucky is unique among states and is held clearly with the best interests of all parties involved. This is not a criminal process; it is a protective process. The court is committed to upholding the principle of “least restrictive alternative” for the Respondent at the same time that it acknowledges the findings of the interdisciplinary team. The Kentucky Guardianship Association is a nonprofit membership association with the goal of improving adult guardianship in Kentucky. Whether you are seeking a clear understanding of the process of appointing a legal guardian, information about how a guardian trial is conducted, or you are a participant on an interdisciplinary team or a lawyer representing a Respondent or a Petitioner, visit our website at www.kyguardianship.org for more information.