What is a Guardianship?

Episode 3:  In today’s episode, Louisville probate attorney David Holton discusses Guardianships and Conservatorships.  These can be extremely important for anyone dealing with an elderly parent suffering from Alzheimer’s, dementia or simply struggles to manage personal and financial activities.  However, a Guardianship and/or Conservatorship is also useful if you have a special needs adult.  Finally, if you are responsible for someone who is battling addiction, you may also need to know about these designations.

What Is a Guardianship?

David explains that our population is aging and more people are in need of a Guardianship and/or Conservatorship.  As stated above, it’s not only used based on age.  You will need to establish one or both if you’re trying to protect a special needs child or in other situations, including brain injuries and strokes.

There are criteria that need to be met.  You’ll have to establish that the person is either mentally impaired or is having ongoing difficulty taking care of themselves and their obligations.  The decision is made via a legal process involving the county attorney. 

What’s the Difference between a Guardianship and a Conservatorship?

Guardians handle personal decisions for the individual, including where he/she lives, medical care and related decisions.  Conservators focus on the financial affairs for the individual.  It’s common for one person to be designated both the guardian and the conservator for the impaired individual.

Louisville Attorney David Holton discusses how to set up a Guardianship

What is the Process to Establish a Guardianship?

In Kentucky, the process is basically as follows:

  • A petition and filing fee are submitted to the court.
  • The County Attorney reviews the information.
  • The court assigns 4 people to get involved with the case:
    • A medical doctor
    • A psychologist
    • A social worker
    • A lawyer designated as the guardian ad litem (“GAL”)
      • This GAL represents the rights of the person, but is different from the guardian who will provide care for the individual.
  • The doctor, psychologist and social worker meet separately with the individual to evaluate the situation and submit recommendations to the court.
    • These professionals and the GAL are there to protect the rights of the individual.
  • The guardian and/or conservator may be required to post a bond prior of their designation to ensure they don’t improperly manage or disburse funds.
  • If the petition for guardianship and/or is approved, the designated person will be required to file periodic reports with the court related especially to status of the impaired individual’s finances and the individual’s personal status.

David Has a Deep Understanding of the Process

David has been the judge overseeing guardianship cases.  He’s been the guardian ad litem representing the interests of the impaired individual.  In his private practice, he routinely petitions the court to establish guardianships and conservatorships.

Can the Individual Stop or Change the Need for a Guardian?

Yes.  David explains the case of an individual who is in addiction recovery and has requested a petition to get her rights back.  David is working to have the guardianship dissolved.  Another situation could include someone who has recovered from a stroke or other brain injury to the point he/she is able to resume responsibility for themselves.

You may be familiar with the Britney Spears’ trial to dissolve her conservatorship. 

Required Reporting

The guardian/conservator is required to submit reports to the court.  A financial report of the impaired person is required every 2 years.  A personal well-being status report is required to submitted annually.  Both are safeguards to protect the individual requiring this care.

Planning Ahead Can be Accomplished

In Episode 1 of his podcast, David discussed the importance of having key documents created, while you are still competent to do so.  One of these documents is a Durable Power of Attorney.  You can also designate your healthcare surrogate in your Living Will.  You’ll be able to specify what should happen, should you become impaired.  You can use it to designate the person you want to protect your interests. 

You’ll still need to go through the process of filing the guardianship and/or conservatorship petition, but having your wishes documented can certainly help.  How you title your bank accounts and your mortgage can also make this more easily managed.

David comments that a Durable Power of Attorney survives the disability of the person making the Power of Attorney.  So, if goes into effect even though you may not be mentally competent at the time needs to be made.

Asperger’s Syndrome and Autism

David explains that when you have a child or sibling who has Asperger’s or is autistic, he/she will need help after reaching the age of 18.  This is when the law considers the individual an adult.  That person may still require help in many aspects of his/her life.  Establishing a guardian and/or conservator is a way to protect him/her.

Be Proactive

As a retired probate judge and a currently practicing attorney, David strongly recommends people be proactive in establishing important documents.  We never expect that something will happen today, but all too often, they do.  You can ensure your intentions, preferences and wishes are handled by taking the time to have an attorney draft important documents on your behalf.  These include but aren’t necessarily limited to:

  • A Will
  • A Durable Power of Attorney
  • A Living Will (“Advance Healthcare Directive”)

David is happy to discuss these documents with you and to assist you in your planning.

It’s Not Too Early

Interestingly, these are also helpful for your college-age child.  If they’ve reached the age of 18 and something were to happen to them (i.e. a brain injury, stroke, medical or mental condition) you may have trouble accessing bank accounts and other personal information, even though you’re the parent.  Remember, once he/she reaches the age of 18, they are considered an adult.

Check out The Blind Judge Podcast!

Retired Probate Judge David Holton actually has 2 podcasts.  In addition to this one focusing on legal matters, his other podcast will focus on community issues, sports, cooking, outdoor activities, politics, history and a variety of other topics, including information about David’s guide dog Coach.

As we conclude Episode 3, we encourage you to connect with David on his Facebook page.  You’ll also be able to subscribe to this podcast on Spotify, Google Podcasts, iHeartRadio, Apple Podcasts, Amazon Music, Audible and many other podcast platforms.  

For more information about probate and estate planning issues, or to listen to The Blind Judge Podcast, visit www.DavidHoltonLaw.com

Thanks for listening!  Please share this episode with your friends and family.

Disclaimer:  This podcast is for informational purposes only.  This does not establish an attorney-client relationship.  Your situation is unique.  Please consult an experienced attorney to discuss your situation.  This is an advertisement.  Principal Office located at 5226 Bardstown Rd., Louisville, KY 40291.  Office phone number: (502) 933-8600.

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