What is Legal Guardianship?
At its most basic, legal guardianship is a means to provide for an individual who cannot manage their own personal decisions. In this context, the term "individual" encompasses two general classes of people: those who are either incapacitated or underage.
The category of "incapacitated" individuals includes those with mental illnesses, mental deficiencies and physical disabilities. Children under the age of 18 also fall into the category of "incapacitated" individuals as well, as they are not considered to be sufficiently mature to manage their own affairs. When children are placed in legal guardianship, their needs are legally provided for by the adult who is designated as their guardian.
Legal guardianship differs from other forms of guardianship in that the rights to a person’s ("the ward") estate and person are granted to someone other than that person. A general guardian is allowed to make decisions about all aspects of the ward’s estate and personal life , including where to live, how to manage their finances and sizable health care concerns, such as whether or not the guardian has the right to consent to surgery on the ward’s behalf.
Guardianship is a decision made by a probate court judge. Prior to deciding that an individual should be placed under guardianship, the judge must review evidence showing that the person is indeed incapable of making certain decisions for themselves. This is known in the state of Kansas as being "determined to be incapacitated." The reasons for declaring a person incapacitated can be numerous.
The practical impact of the decision is that the legally appointed guardian assumes all responsibility for the welfare of the ward. This includes matters relating both to their health and finances. Because of the potential for abuse and the importance of the responsibilities connected with being a guardian, the legal system views such arrangements very seriously.
Steps to Obtain a Guardianship in Kansas
When it comes to the requirements for establishing legal guardianship in Kansas, it’s important to note that the headers and paragraphs I just included above are a good example of why you hire a lawyer. I’ve often had clients tell me they have a family member or friend who has a specific piece of information about how to do something and you should listen to them because they have a loved one who went through the process recently and it’s "not hard at all." While this is sometimes true and my client may know what they’re talking about, most of the time, their loved one went through the process recently and learned nothing.
Just because the application can be online and shows you how to get through the process filling out the forms does not mean there is no point at which an attorney is necessary. Of course, I think if you want to try the DIY estate planning, that’s your right and I’m happy to fix what you did when you find it didn’t work quite as you thought it would. However, with regards to guardianship, it isn’t that easy. This is because the whole point of having someone deemed your guardian is that you don’t want that person just going around deciding to spend your money or put you in a nursing home or make medical decisions for you or cut your toenails or any other numerous things that arise. May seem easy, but it’s not.
As I mentioned above, this is a process so what does that mean? The application or petition to have someone declared your guardian must be filed with the court. This is where you specify who you are asking to be your legal guardian. You cannot simply insert a name and go on about your life. In the event you are unable to communicate, is the person who will make the decision for you the same as someone who you would appoint to do your grocery shopping? Perhaps so but maybe you don’t even want the same person to do each of these.
In the petition, there are a number of questions that are asked. These questions, though they seem simple in some ways, aren’t. In fact, there are questions about your mental capacity, your level of ability to take care of yourself and carry out certain tasks, and issues about other people or entities potentially having jurisdiction over you. What does that mean? Let’s say you are a snowbird. You live on a ranch in Western Kansas in the summer and live in Arizona in the winter. Does your "home" state have jurisdiction of you or does your "winter" state have jurisdiction over you? This seems like a straightforward question until you actually start thinking about it. How do you know what the home state looks like? It may be a lot different now than when you have lived there before. How do you know what the Arizona state looks like? It depends on where you lived as to what services and what capacity you have.
That’s why this is a process. A process requires a lawyer. An attorney who knows what the purpose is to establish the guardianship, how to properly establish it, and to answer any questions that come up along the way. After the petition is filed, then it must be noticed out to people. This means that if you have any bank accounts that exceed $25,000, you have to give notice to your bank. Get ready now for them to ask for a copy of the order of appointment if anyone actually shows up to object to the proposed guardian. If you don’t have bank accounts in your name individually, you probably need to think about managing your money differently: jointly held accounts, trusts, or gifting your money to people you trust. If you can’t imagine such a thing, then you want a guardianship if you become incapacitated.
The general concept of a guardian being appointed is that you, whether it be you or a family member, believe that you need some assistance in managing your money and health care. The general approval process requires that medical evidence be presented to establish that you are or have become incapacitated. Once that’s established, then guardianship is approved by the court.
Types of Legal Guardianship
In Kansas, guardianship comes in several forms and the sort of guardianship that may be appropriate under the circumstances will depend on many factors, not the least of which is who requires a guardian. If the incapacity concerns a minor, a guardianship of a minor is appropriate. If the incapacity relates to an adult, a guardianship of an adult is appropriate. In some situations a temporary guardianship may be appropriate. A guardianship of a minor is often necessary when the minor is the beneficiary of a trust or an estate. Typically, in this situation the trust or estate documents will contain provisions relating to minors. The trustee or executor will manage the funds until the child attains a certain age. For example, the Kansas Uniform Trust Code provides that money held in trust for a minor will be paid over when the minor attains age 18. (K.S.A. 58a-103(a)(2)) That means that the court must appoint a guardian over the minor estate to manage funds until the minor attains the age of majority. In this circumstance, the guardian will be a bank, trust company or an adult responsible to manage the minor’s funds. Kansas has a distinct statute for the appointment of a guardian of a minor (K.S.A. 38-130). A guardianship of a minor may also be necessary when a minor inherits property outright prior to reaching age 18. K.S.A. 38-1307rd provides: "A guardian, if required by the terms of a grant of trust property, shall be appointed by the court. If the guardian is required by the terms of the grant, the guardian, during the time specified, has all of the powers conferred on the trustee by the Kansas uniform trust code and is subject to the duties of the trustee." If the incapacity involves the person being an adult, a guardianship of an adult is appropriate. An adult guardianship is appropriate when an adult has a disability that prevents the person from receiving and evaluating information or making or communicating decisions, even with supports and services. K.S.A. 59-3079 defines disability as, "unable to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to meet the essential requirements for the individual’s physical health or safety, even with appropriate advance care directives and supporters and sufficient supports and personal assistance." If the disabilities are only short in duration, a temporary guardianship may be the most effective method for meeting the individual’s needs. Under K.S.A. 38-1352, "a court may appoint a temporary guardian if it appears that the individual’s affairs require immediate action or that the individual or others are likely to suffer immediate substantial harm." Temporary guardianships are designed to alleviate emergencies or make short-term arrangements.
Guardian’s Duties
It’s essential to understand that many rights and responsibilities go along with the appointment of a guardian in Kansas. There are some things that a guardian can do, and there are some things that a guardian cannot do, under Kansas law. You should never appoint someone as a guardian without first understanding what is expected from them, and what is expected from you as the State of Kansas.
The rights of a guardian include authority to:
The duties of a guardian are to:
In situations where people have been assigned an emergency guardian and the court order establishing the guardian has not been confirmed at the regular guardianship hearing, the emergency guardian may exercise all powers except:
Now that you understand the rights and responsibilities of a guardian over the person, let’s talk about the rights and responsibilities over property held for the care and benefit of the person.
The rights of a guardian over property if the guardian is not a trust company or a bank, include to:
The duties of the guardian over property, if the guardian is not a trust company or a bank, are to:
The duties of the guardian over property if they are a trust company or bank include to:
Now that you understand the rights and responsibilities of a guardian over the person and property, we’ll talk about removing a guardian when they no longer meet the needs of the protected person. A guardian may be removed for the same reasons that a personal representative is removed in Kansas, but it is up to the court to make that decision.
The Court Process
Once your petition is filed, the courts will set an initial hearing. The first step to getting ready for that hearing is to figure out who will have to come. The petitioner is required to be at the hearing, but everyone else is more flexible. Everyone with a substantial interest in the guardianship, like adult children or siblings of the proposed ward, need to be notified of the hearing date and given a chance to respond. If they’re OK with the guardianship, chances are they won’t need to be present, but it’s good to make sure up front. One good rule of thumb is to just notify everyone that would have an interest in the finances of the ward.
A judge will decide whether or not to appoint a guardian based on the report from either a court visitor or a physician. The visiting court officer will ask you a bunch of questions about the condition of the ward. A physician must say if the person is unable to make decisions about their own actions. You or the visitor can also bring more information about how the ward interacts with their everyday needs to help support the appointment of the guardian .
If any objections are made to the guardianship, they’d be addressed at the hearing. However, if there are no objections, the court will most likely approve the guardianship and appoint someone to fill that role. There is a period during which anyone may object and, if there is an objection from someone, then the court will hold a contested hearing. The person subject to the appointment should have their lawyer ensure that they respond promptly to any objections, or they may lose the opportunity to have their individual facts considered.
If a judge appoints a guardian over the objection of the proposed ward, that person will have the right to ask the court to examine him or her. The purpose of the examination is to determine if the person needs someone to tell them what to do. Once the judge has a chance to talk to the proposed ward, they’ll decide if a guardianship is recommended. If there are enough open objections, the judge will set a trial to make a decision about who gets appointed.
Alternatives to Legal Guardianship
Legal guardianship is one of many options for ensuring that the future care of an individual with a disability will be taken care of or that an individual’s future interests are managed. In Kansas, there are also powers of attorney, trusts, and conservatorships to consider.
Powers of Attorney
With a power of attorney, you can appoint an agent to act on your behalf—this power can be limited or broad depending on your preferences. The power of attorney terminates when the principal becomes incapacitated. For this reason, a durable power of attorney survives the incapacity of the principal. For certain activities, a durable power of attorney is valid only if it is signed by the principal while the principal is competent. These activities include (but are not necessarily limited to): This means that if you wait until you are in the hospital to create a power of attorney, the doctor will have to determine that you are competent to sign the document.
Trusts
With a trust, you can give someone else the right to manage your money or property. The advantage offered by trusts is that you can name a trustee to manage your property for a beneficiary you select. Trusts avoid the possibility of court guardianship. Trusts may be a great alternative to legal guardianship, especially if they are created now, while capacity is not an issue.
Conservatorships
A probate court may also appoint a conservator to manage the estate of a person who is incapacitated. A conservator can be an alternative to a legal guardian if you want the assets a person has also considered in determining whether a legal guardian is needed. A conservatorship can also be an alternative to a power of attorney if you want someone who can manage property and also have some limited personal-care powers. This is because the person in a conservatorship is treated as a "ward" and the conservatorship authority includes broad powers to manage the property. Conservatorships are a little different than legal guardianships and powers of attorney in that the person to be conserved must have property needing management. Thus, where an individual has significant personal property (e.g., clothing, personal items), it may not be appropriate to appoint a conservator.
Termination of a Guardianship
In most cases, guardianships do not last indefinitely. If you or someone else who is named as a guardian over a ward believes the arrangement should end, then you will need to follow a specific legal process through the probate court to do so. Otherwise, the guardianship arrangement will remain in effect until the ward’s death.
A guardianship can be voluntarily or involuntarily terminated. The most common way of terminating a guardianship is through petition in the probate court. A petition to "terminate guardianship" must be filed by the guardian in the district probate court as soon as the ward no longer meets the criteria for guardianship. This would mean that the basis for the guardianship no longer exists.
If the guardian fails to successfully terminate a guardianship, the court may hold a hearing and determine that the guardianship is no longer necessary for certain individuals:
- The ward must have reached the age of majority, which in Kansas is 18.
- The ward must have passed away – a guardianship terminates upon a ward’s death.
- The ward must have been legally adopted by another legal parent.
In certain circumstances, the court may also terminate the guardianship on its own accord. The guardian and the ward may motion the court to terminate the guardianship, which may end up being a hearing in front of a judge.
Resources for Guardians
The Kansas Guardianship Association (KGA) is a professional association of individuals and organizations that provide guardianship services in the state. The KGA website provides a number of resources for both guardians and families. Notice of trainings and seminars are regularly provided on the site along with relevant articles and news impacting the elder population.
The Kansas Guardianship Program Inc. (KGP) is a non-profit agency that provides guardianship services to seniors and disabled individuals who have no other family or friends to act as their guardian. KGP is the largest guardianship agency in Kansas. It is a trusted and experienced leader in the provision of services and a strong advocate for those it serves. Information regarding the services it provides can be found at www.kgpcares.org.
This statewide, nonprofit law firm provides free legal help to approximately 15,000 low income clients each year through a staff of over 60 skilled attorneys and the volunteer aid of many dedicated private attorneys . The Legal Aid of Kansas website provides detailed information about the services the firm offers and eligibility requirements. Legal Aid of Kansas has offices throughout the state.
Beginning in January, 2016, a statewide system of Aging and Disability Resources Centers (ADRCs) came online. These centers combine the services of the Aging Information and Assistance Centers (I&A) and the Home and Community-Based Services (HCBS) Waiver Consumer Choice information and Referral Centers. The ADRCs serve as a consistent source of information and assistance for consumers needing or wanting access to affordable, quality long term care. In addition, they administer programs, such as the recent expansion of KanCare, and coordinate information about opportunities available through the Statewide Independent Living Counsel among many others.
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