Sometimes a loved one needs help to make day to day decisions concerning their own care or the management of their money. If that person’s decision making ability becomes so impaired that they can’t meet their own daily personal or financial needs, you may need to seek the appointment of a Guardian and/or Conservator.
James E. Carpenter has extensive experience in these areas and can help. Contact the Law Office of James E. Carpenter today to schedule an appointment to discuss your needs.
Having acted in all roles of the Guardianship and Conservatorship process; whether as legal representative for the person requesting appointment, as Court appointed Guardian ad Litem for the proposed ward, and in the actual role of Guardian and Conservator, James E. Carpenter understands your situation and has the expertise to guide you.
What is Guardianship?
Guardianship is a legal process where the Probate Court, upon proper evidence, determines that a person lacks the capacity to make day-to-day decisions on their own and needs the assistance of another. A Guardian can be appointed for either an adult ‘with an impairment’ or a minor child, whose own parents are unable to meet the child’s needs.
An adult in need of a guardianship may suffer from a mental or physical impairment which prevents them from making rational decisions on a day to day basis. A doctor, healthcare provider, counselor, or other qualified person will determine whether a person now lacks the capacity to function independently and needs a guardian.
The next decision is the best person to assume the role of Guardian. The person granted the Guardianship is called the Guardian. Two or more persons appointed with equal decision making authority are Co-Guardians. A person appointed as a backup guardian is called a Standby Guardian. The impaired individual is called the ward. Upon final approval of the appointment of a Guardian, the Court will issue Letters of Guardianship.
Child guardianships occur for other reasons. A child, until the age of 18 in Kansas, can not make decisions on their own. Their parents make decisions on behalf of the child as to educational and health care needs. Sometimes a parent is no longer available to make these decisions. When this happens, another person must be appointed as guardian to the child to step in and make sure the child’s needs are met. Most often this will be a grandparent, aunt, uncle, other close relative or an individual with a strong emotional attachment to the child.
Conflict often arises between family members as to both the need for a guardianship and the proper person to be appointed guardian. If you suspect the need for a Guardianship, contact the Law Office of James E. Carpenter to discuss your situation.
What is Conservatorship?
Conservatorship is a legal process where the Probate Court determines that a person lacks the capacity to understand the nature of their assets and needs assistance to pay bills and otherwise manage their income and property.
As with a guardianship, a professional must make a determination that an individual lacks the capacity to handle their own finances. This must be reviewed by the Court, and if the Court agrees, an individual must be appointed to handle the impaired individual’s finances. The person who is found in need of help is called the Conservatee, the individual appointed to manage the finances is called the Conservator. Upon final approval of the appointment of a Conservator, the Court will issue Letters of Conservatorship.
The need for a Guardian does not automatically mean that there is the need for a Conservator. This will depend on the sources of income and the living arrangements of person in need of assistance.
Whether you need assistance in establishing a Conservatorship, to contest the need for a Conservatorship, or representation as you challenge the appointment of a specific person as Conservator, the Law Office of James E. Carpenter stands ready to help. Contact James E. Carpenter today to schedule an appointment.
Can anyone be a Guardian or Conservator?
No. The Court will look at the entire situation to determine the best person suited for the role of Guardian to a particular person. The Court will appoint an attorney, called a Guardian ad Litem, to make an independent investigation of the facts and allegations in a particular case. The Guardian ad Litem is required to act in the best interst of the individual over whom a Guardianship or Conservatorship is requested.
Many factors are reviewed prior to the final decision by the Court. These include, among many others; the relationship between the proposed guardian/conservator and the proposed ward/conservatee; whether or not there is disagreement among family members; the identified needs of the proposed ward/conservatee and the ability of the proposed guardian/conservator to meet those needs; and the determination of the ‘least restrictive placement’ for the proposed guardian/conservator.
Prior to final appointment as guardian or conservator, there must be a Guardianship/Conservatorship plan which describes the actions that will be taken on the part of the Guardian/Conservator to meet the needs of the ward/conservatee.
Another factor involved in the appointment of a Conservator is the size of the conseratee’s estate.
Does the conservatee receive income from a State of Federal agency with its own requirements for appointment of a ‘fiduciary’ or ‘representative payee’? Is the value of the estate, combined income and assets, of such a dollar value that the Court will require that the Conservator post a bond? Is the proposed Conservator bondable?
With years of experience working with both the Courts and both Federal and State agencies, the Law Office of James E. Carpenter can help you answer all of these questions.
Can the same person be both Guardian and Conservator?
This is not the preferred situation and is discouraged by Kansas law. The same person in both roles can give rise to conflicts and suspicion. In most cases, the Court will favor appointing two separate individuals to these roles. There are exceptions of course, and the Law Office of James E. Carpenter can provide you with much needed insight and advice as you work within the requirements of the law.
How will I know if there is a need for a Guardianship or Conservatorship?
Often, the first indication that you need a guardianship or conservatorship over another will come from either a health care worker, a governmental agency, or, in the case of a child, a doctor or school. It is not uncommon for a parent to be in the role of providing assistance to an adult child for years without knowing of this need and then suddenly be asked by a doctor, Medicaid personnel, or a skilled nursing facility for a copy of the Court documents giving you the authority to act on behalf of another.
Another common situation is for grandparents to have a grandchild residing with them for some reason. The grandparent attempt to either enroll the child in school or obtain medical treatment only to find that they lack the authority to do so.
A third common situation is when your minor child suffers from severe mental of physical impairments which require assistance past their eighteenth birthday. For a parent or other family member to actively participate in the care of this child, an adult Guardianship/Conservatorship must be established through the court process.
Finally, the necessity of a conservator is first raised by an insurance company. Whether a minor child is a beneficiary to a life insurance policy or awarded a settlement in a personal injury case, the funds will not be released directly to the child or often not to an immediate family member.
The nature of these settlements requires the appointment of a Conservator to manage the child’s funds until the child reaches the age of majority, eighteen in the State of Kansas.
If you are told you need a Guardianship or Conservatorship or if you suspect there is a need for one to protect a loved one, contact the Law Office of James E. Carpenter and schedule an appointment today.
How long does a Guardianship or Conservatorship last?
For a child without an impairment, the guardianship or conservatorship normally ends upon the child’s eighteenth birthday. There are provisions for these to continue past that time for specific purposes.
For a child with an impairment, the guardianship/conservatorship will terminate upon the eighteenth birthday unless a new adult guardianship/conservatorship is filed and approved by the Court.
An adult guardianship/conservatorship will continue for as long as the need giving rise to the guardianship/conservatorship remains. Some conditions caused by neurological or physical conditions may never improve, while others caused by untreated mental health or drug/alcohol use, may improve with time. It is possible to petition the Court and prove that an individual is no longer in need of a Guardianship/Conservatorship and to terminate the proceedings.
Guardianships and Conservatorships are reviewed annually by the Court. This does not mean that you must go to Court each year, but it does mean that the Guardian must, in Kansas, file an Annual Report on the Condition of the Ward, and the Conservator must file an Annual Accounting. This provides the judge the opportunity to review the continued need of a Guardianship or Conservatorship or to spot potential problems which should be corrected.
Are there limits to what a Guardian or Conservator can do?
Yes. First of all, all decisions must be made with the best interest of the ward/conservatee in mind. Whenever possible, the guardian/conservator should consult with and follow the requests of the ward/conservatee as long as those requests are reasonable and in the ward/conservatee’s best interest.
More difficult are decisions as to the placement of an impaired adult. Can the ward remain in the home, in the home of a family member, a group home, an assisted living facility or a full time skilled nursing facility? Again, you must determine what is in the best interest of the ward/conservatee, what services are available, and what is the ‘least restrictive placement’. It is a requirement of Kansas law that all individuals be granted as much freedom of decision making as possible under any given set of circumstances.
The cost of each possible living arrangement is also a consideration. In many situations, when the Guardian and Conservator are two different individuals, there must be agreement as to what is in the best interest of the ward/conservatee. These decisions can always be reviewed by the Court.