Guardianship and Conservatorship

KENTUCKY GUARDIANSHIP / CONSERVATORSHIP ATTORNEYS
Unexpected tragedies happen every day. Whether it is the loss of a loved one or if a loved one has been seriously injured in an accident or becomes very ill (either physically or mentally), you may need to consider establishing guardianship / conservatorship to protect minor children as well as adult loved ones who can no longer care for themselves. Guardianship / Conservatorship is an arrangement under Kentucky law that places a protected person, such as a minor child or an adult unable to care for him or herself, under the supervision of a Guardian / Conservator. A Guardian will have control over the person and the Conservator will have control over the person’s property.
A guardian and conservator is usually a family member, a friend of the family or someone who is appointed by the court. The person being protected is often a minor child who no longer has a parental guardian, whether it be because the parent has suddenly died or whether the parent can no longer make decisions that are in the best interest of the child or an adult family member suffering from a physical ailment or a cognitive disease.

GUARDIANSHIP PROTECTION OVER THE PERSON
In order to establish a guardianship for the protection of a person, you will need to file papers with the court. You will need to prove to a six-person jury that the person in question is in need of protection (whether it be a minor child or adult who can no longer support him or herself). If a court approves your request to establish guardianship, the guardian will be responsible for the following:

Deciding where the person will live;
Making decisions regarding the person’s medical care, by giving informed consent and choosing where the person is to receive medical care;
Making life decisions for the person such as education and counseling (if needed for persons with psychological or psychiatric issues);
Making decisions for end-of-life care;
Paying the person’s debts, medical and other expenses;
Ensuring that the protected person is still able to make his or her own decisions within the possible limits; and
The guardian will likely be required to show the court that the protected person’s needs are adequately being met under the care of the guardian.

The above responsibilities are extremely important to the welfare of the protected person, so it is essential that the guardian understand and commit to making decisions that truly are in the best interest of the protected person. This is an undertaking that not everyone can handle or is willing to handle. It is always best to have a close family member as a guardian if at all possible, however, if there is no family member that can protect the person as required by the court, then it may be necessary for the court to appoint a non-family member as guardian.

CONSERVATORSHIP PROTECTION OVER THE PERSON’S ESTATE OR PROPERTY
While a Guardian has the responsibility of protecting the person as discussed above, the Conservator has the responsibility of protecting the person’s estate or property. While the Guardian protecting the person is typically the same as the Conservator protecting the person’s property, it is possible that a separate Guardian and Conservator may be chosen with approval and direction of the court. The Conservator will be responsible for the following:

Paying the protected person’s debts;
Protecting the protected person’s assets;
Managing any income the protected person receives;
Managing the sale or transfer of the protected person’s assets (upon court approval); and
The Conservator will have to report to the court that the protected person’s assets are being properly managed and debts being paid.

Most guardianships and conservatorships are permanent unless the minor reaches the age of majority or the protected adult person regains capacity after an injury or illness. If a person who has a Guardian or a Conservator over them believes the Guardianship and/or Conservatorship is no longer necessary, they can file a Motion with the Court and ask the Court to determine if the Guardianship and/or Conservatorship is still necessary.

LIMITATION OF RIGHTS AND PRIVILEGES OF THE PROTECTED PERSON
Guardianship and Conservator relationships inevitably limit the rights and privileges a protected person has. This is a necessary consequence when Guardianship and/or Conservatorship is in the best interest of the protected person. The limitations on rights and privileges don’t apply to minor children in the same way as they apply to adult incapacitated individuals. The following are ways in which the rights and privileges of adult protected persons are limited:

Marriage;
Voting;
Being a party to a lawsuit or entering into contracts;
Giving informed consent to medical treatment and choosing in what manner to receive medical treatment;
Entering into property transactions;
Making end-of-life decisions; and
Obtaining a driver’s license.

It is always best to consult with a Guardianship / Conservatorship attorney to ensure Kentucky law is being complied with. Guardianship and Conservatorship can be complicated and there must be a happy medium between necessary protection and allowing the protected person to be autonomous as much as possible.

CALL GOEING GOEING & MCQUINN TODAY FOR A FREE CASE EVALUATION
If you are considering naming someone in your last will and testament to be the guardian of your child(ren), or if you are in a situation where you need to establish guardianship of a minor child or an adult who is no longer able to adequately care for him or herself, you need the assistance of the experienced estate planning and guardianship attorneys at Goeing Goeing & McQuinn. Our firm provides the utmost personalized care when evaluating your situation. Our four attorneys have helped thousands of Kentucky citizens plan for their future and set up guardianships to protect their loved ones. To schedule your free consultation with one of our attorneys, call our office today at (859) 904-2045.