Guardianship and Conservatorship over another person are available when a person is unable to take care of their personal and financial affairs. Proceedings for determination of legal disability and appointment of guardianship and/or conservatorship take place in the district court where the respondent lives. Guardianship takes care of personal affairs or day-to-day activities, while conservatorship handles the respondent’s financial affairs.
Our office can assist with the preparation of the petition for guardianship, and as a party to the action, we will appear at all hearings and will assist with the presentation of evidence until a disposition is entered. In order to file a petition for guardianship, our office requires that the petitioner provide a recently signed note from a doctor or nurse practitioner stating that the respondent needs a guardian and/or conservator. If the petitioner is requesting an emergency appointment be made, the doctor’s note must explicitly state that the respondent needs an emergency guardian. Petitioners may also file this paperwork directly with the Clerk’s Office or with the assistance of a private attorney.
An adult who is unable to meet their daily needs due to serious mental illness or dementia (e.g. malnutrition, unpaid bills, hygiene, wandering from home).
An adult who may have an issue with their primary caretaker (e.g. abuse, neglect, or exploitation).
An adult with an intellectual disability.
A juvenile who is unable to meet their daily needs due to serious mental illness or physical or mental disability who is about to turn 18.
A petition, AOC Form 740, is completed and filed with the clerk of courts. Any person concerned with the welfare of the Respondent may file the petition. The form asks for information about where the Respondent lives, who is next of kin, and why a guardian or conservator is necessary. Via KRS 387.530, the AOC Form 740 shall consist of the following:
At the same time, the petition is filed, an application for an emergency appointment, AOC Form 745, may be filed if necessary. Further, an application of appointment of fiduciary for the disabled person, AOC Form 747, must also be filed by the person intending to be the guardian or conservator of the Respondent. The person filing the petition, or petitioner will also need a written letter or note from a care provider to substantiate the need to appoint an emergency guardian/conservator.
KRS 387.740 states that an emergency appointment will occur when, “during the pendency of a proceeding for a determination of partial disability or disability or an appeal therefrom, it appears that there is danger of serious impairment to the health or safety of the respondent or damage or dissipation to his property if immediate action is not taken.”
Within one week of the filing of a petition pursuant to this section, the court shall conduct a hearing at which the respondent shall be entitled to counsel. Notice of the time and place of the hearing shall be given not less than forty-eight hours prior to the hearing to all persons named in the petition and to the County Attorney.
If the Respondent does not have an attorney, the Court will appoint an attorney to provide representation, called a Guardian Ad Litem (GAL). The County Attorney will represent the Commonwealth in this proceeding. The Petitioner is not required to have an attorney but may choose to do so.
After the Court reviews the petition and applications, the Court will designate an Interdisciplinary Team consisting of a Doctor, Psychologist, and Social Worker. Each member of this team will meet with the respondent and file a report consisting of their respective opinions as to the Respondent’s legal disability.
Once the Court receives all three reports, the matter will be scheduled for a bench trial or jury trial in the District Court. The hearing shall be a jury trial unless the following criteria are met: the respondent, counsel for the respondent, and County Attorney agree to a bench trial; no objection to a bench trial is made by an interested person; and the interdisciplinary evaluation reports reflect unanimous consensus as to the determination of disability and the court finds no cause to require a jury trial. At either hearing, the County Attorney, on behalf of the Commonwealth, and the Respondent’s attorney will present evidence from the reports. Upon conclusion of the trial, the judge or jury will determine whether the Respondent is fully or partially disabled in personal and/or financial affairs. The Respondent must be present at the hearing unless the court determines that attendance would subject the person to serious risk of harm.
If the judge or jury finds that the Respondent is partially or fully disabled in either their personal or financial affairs, the Court will decide who will be the Respondent’s guardian or conservator. Upon selection, the Court will file an order outlining the constraints of the guardian or conservator, if any. The court order will be filed with the court but must also be indexed in the county clerk’s office.
For more information, please visit Kentucky Guardianship Association, Inc. or call our office at 270.821.3164.
