Guardianship is the process through which a court makes a determination of disability and ultimately appoints an individual to act for the disabled person.
In Kentucky, the guardianship process requires an interdisciplinary panel of three separate professionals — a social worker, a physician and a mental health professional — to independently evaluate the individual at issue and to make a recommendation to the court. If all recommendations are not identical, the proceeding may need to be heard by a jury for the determination of disability.
Because of the number of reports required, guardianship proceedings can take months between the initial filing and the final order appointing a guardian. Upon appointment, the guardian must use the respondent’s property only for the benefit of the respondent and the guardian will be required to submit periodic reports to the court showing how the property is being used.
Guardianship can be a somewhat overwhelming process, both for the disabled property owner and the guardian. However, in most cases, buardianship can be avoided with proper planning. There are two great options for preventing the need for buardianship.
First, review existing powers of attorney to ensure that future needs will be covered. Because laws surrounding powers of attorney have become much more complex over the past few years, many older documents do not include only recently required specified powers. Even individuals who proactively planned for potential incapacity may still find themselves in guardianship court because of a document failure.
If existing documents are deficient, execute new powers of attorney. Everyone should have both a durable general power of attorney that covers financial and legal matters, as well as a medical power of attorney.
The power of attorney may allow the agent to act immediately or may require the agent only be allowed to act upon the principal’s incapacity. Although an immediate power of attorney is much easier to use in practice, requiring the triggering event of incapacity still can ensure the authorization is available at the time most needed.
Power of attorney documents are important for everyone to have in place. However, it should be noted that a power of attorney gives power, but does not limit the power of the individual executing the document. For this reason, individuals with diminished capacity may continue to act for themselves legally, regardless of the consequences of the actions. When an individual is unable to understand the consequences of his or her actions, but acts anyway, he or she likely still will need a guardian, simply to remove his or her right to act.
The second option, using a revocable living trust, offers a mix of freedom and protection to the principal. Although we typically think of a revocable trust’s primary benefit as being for probate avoidance, the disability provisions for trustees can be an even greater benefit.
In most cases, all of the grantor’s property, other than retirement accounts, would be funded directly into the trust. Revocable living trusts generally are set up in a way that allows the grantor (the person setting up the trust) to remain in control of the property. However, the trust instrument also should include provisions for removing and replacing the trustee if he or she becomes incapacitated.
Removing the grantor trustee allows the grantor’s successor yrustee to continue to act, and allows the grantor to continue to have his or her own legal rights in place, but prevents the grantor from being able to dispose of property. This option provides a less intrusive way to protect the grantor from exploitation or unintentional property loss.
Guardianship proceedings should be a last resort to protect individuals. Proactive planning can ensure wishes are followed in the least restrictive way.