Consider the following scenario: Aaron's mother was recently diagnosed with dementia. She lives alone with two dogs and refuses in-home nursing care. She also refuses to give up driving and recently got into a minor fender bender because she became disoriented behind the wheel. Aaron is seriously concerned for her safety, but he does not know how to broach the subject of guardianship with his mom. How do you know when it is time to consider guardianship for the safety of your aging parent?
When Is Adult Guardianship Necessary?
An adult guardianship may be necessary when an elderly loved one has a debilitating physical or cognitive disability that affects their autonomy and their ability to care for themselves and to make financial and medical decisions on their own behalf. The disability must be verified and documented by a licensed physician. Guardianship is often pursued for an elderly loved one on their behalf if the adult child believes a third party is trying to take advantage of their aging parent, either financially or in some other manner. Seniors are often targets for fraud and neglect, but this can be prevented in some cases by considering a guardianship when the time is right. Having a frank discussion with aging parents can be a good way to start.
Preparing for an Adult Guardianship Proceeding
For a guardianship over an elderly adult to be granted, the petitioner must establish the ward's (person for whom the guardianship is sought over) demonstrated need for a guardian. The petitioner must also establish the nature of their relationship with the ward and explain why they are interested in protecting the ward. To petition for guardianship over an elderly loved one, the interested person must file a petition with the district court of jurisdiction (where the ward resides). Once the petition is filed, a three-person team will evaluate the respondent. The respondent is the ward the potential guardian is seeking guardianship over in a hearing, and the three-person team consists of a medical doctor, a psychologist, and a social worker. The team will interview and evaluate the respondent and prepare a report for the presiding judge in advance of a guardianship hearing.
The ward/respondent must have attorney representation separate from an attorney that a petitioner may hire. In Kentucky, an adult guardianship hearing is conducted procedurally as a trial. The judge or jury (depending on what matters are contested) must find, by a preponderance of the evidence, that a guardianship is necessary for the ward/respondent. If the jury rules in the potential guardian's favor, the presiding judge will appoint the guardian and set provisions over what autonomy the guardian does or does not have. In some cases, a jury may find that a guardianship is necessary but that the petitioner is unfit. In that situation, the judge selects an interested person who is prepared to serve. Once appointed, the guardian must file financial reports (accountings) with the court on a regular basis, delineating the status of the ward's financial accounts and the care or services that have been obtained on their behalf. This is done to ensure the safety of the ward's welfare and that the guardian is meeting their fiduciary duties to the ward.
Contact Our Guardianship Attorneys at Darpel Elder Law
Preparing for a Kentucky adult guardianship proceeding is a major ordeal for all the parties involved. Our attorneys understand that adult children only want the best for their aging parents, as they are concerned about their safety and welfare. However, a guardianship is not simply awarded because an adult child petitions, as granting the petition means that the elderly adult will lose some civil rights and autonomy. A guardianship are typically pursued when an elderly adult presents a danger to themselves and can no longer safely manage their own day-to-day care and finances. If you need help preparing a guardianship petition or want to discuss alternative options for an elderly loved one, contact our attorneys at Darpel Elder Law. We are conveniently located in Crestview Hills and serve clients throughout northern Kentucky.