As Kentucky is experiencing the wave of an aging population, there will be an increasing number of adults with diminished capacity struggling to care for themselves. The Commonwealth of Kentucky has a number of legal options that offer protection for adults who are determined to be compromised in their ability to perform their daily activities in such a way that they safeguard their health, their homes and assets and are not vulnerable to exploitation by others. Because of our fierce commitment to protecting the rights of people to act and live independently, the courts have created a number of options to meet the needs of individuals with a clear emphasis on employing the least restrictive means in which to accomplish management of an individual's personal care, property and financial matters.
While legal guardianship allows for the guardian to assume full responsibility for personal care, property and financial matters, a less restrictive option is legal conservatorship. Legal conservatorship is more limited as the Conservator is responsible for property and financial affairs but has no authority over the personal care of the individual. Legal Conservatorship works well when people need assistance with their living arrangements and their financial matters, but remain able to make health care decisions. Handing over financial and property issues by an individual to a Conservator can provide peace of mind for this person and loved ones, while retaining some sense of independence on personal matters.
Establishing legal conservatorship for an adult requires a legal process detailed in Kentucky Revised Statues, Chapter 387. The person with concern for an individual (the petitioner) must file a petition in District Court. The person for whom there is concern is known as the respondent. The District Court office clerk 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 Kentucky's larger counties have a Mental Health Clerk to work with the Petitioner. Once the petition is filed, the court schedules a thorough evaluation of the respondent by an interdisciplinary team comprised of a physician, a psychologist and a social worker. The reports of the three professionals serve as the evidence presented in a trial before a six-member jury panel. The jury will rule on the presence and extent (full or partial) of legal disability and recommend legal conservatorship (full or limited) or guardianship (full or limited). In the presence of legal disability, the judge immediately appoints either a conservator or a guardian.
When legal conservatorship is used to provide protection for an adult, the property of the respondent is held by the conservator as a trust and must be accounted for annually. Legal conservatorship provides protection to the respondent with a series of reporting requirements by the conservator. The appointment of a conservator can be an effective remedy in those difficult situations where there is reason to suspect that financial management by someone other than the respondent is needed. The Kentucky Guardianship Association (KGA) is a nonprofit membership association with the goal of improving adult conservatorship and guardianship in Kentucky. Whether you are seeking a clear understanding of the process of appointing a legal conservator or guardian, information about how a disability determination 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.