One of the most difficult challenges is dealing with a family member who cannot make reasonable and prudent decisions for themselves.  Whether the result of a stroke, Alzheimer’s, mental illness, developmental disability,  or other cause, someone else must make important decisions on their behalf. If the individual has previously signed a Power of Attorney, their agent can often serve in that role, assisting with financial, healthcare, and other important decisions. But if there is no Power of Attorney, and the person is no longer competent to sign one, then the only option may be guardianship.

Governed by state law, a guardianship is where the local court appoints someone to be the “guardian” or “conservator” for the incompetent or “disabled” person. This process is started by filing a petition with the local court to seek a determination of the person’s disability. Kentucky is one of just a few states that use a six-person jury to determine if a person is disabled or incompetent. As part of that process the state appoints a three-member evaluation team consisting of a physician, social worker, and psychologist, to interview the individual.  The team then prepares a report to the court and a member testifies at the hearing to determine if the person is disabled. A person can be determined to be partly disabled, such as for financial purposes only, resulting in the appointment of a conservator to control their financial affairs but no other matters. Usually a family member petitions to be appointed as guardian or conservator, but sometimes there are no family members available to serve. In that case the court would appoint another person or an agency willing to assume the responsibility. The court-appointed guardian or conservator is required to report to the court regularly regarding all transactions made on behalf of the disabled person.

Guardianship is a very serious matter.  It removes certain civil rights from the disabled person, and gives considerable power and responsibility to the court-appointed agent. The advice of an experienced attorney can help the family determine if guardianship is the appropriate procedure to protect the interests of the loved one.