What Is Adult Legal Guardianship?
What is Adult Legal Guardianship?
The specific definition of a legal guardianship varies by state, but a legal guardianship is a court-granted authority to make virtually any decision for an adult with diminished mental capacity. Guardianship is a legal duty imposed on the guardian and is subject to court oversight and approval. In Kansas, adult legal guardianship is granted pursuant to K.S.A. 59-3070 et seq.
A legal guardianship remains in effect until a court terminates and removes both the right and duty to care for and make decisions for the legal ward. The legal guardianship can remain in effect for months or even years. Kansas allows adults to sign a Durable Power of Attorney and/or Living Will. Those documents can empower a trusted person to act on behalf of the vulnerable adult. However , Kansas does not provide for a financial Power of Attorney for individuals under age 18. A legal guardian is granted the authority over medical decisions, custody and control of the adult and to manage legal, financial, health care, residential and educational matters as well as the authority to consent to an anatomical gift of the adult ward’s body, pursuant to K.S.A. 77-5209.
Some experts indicate that adult legal guardianships create a "zone of inattention" in our society, where discrimination against the elderly or disabled adult is prevalent. Adult legal guardianships are governed by heightened standards and a stricter standard of due process when compared to legal guardianship for minors.
When Guardianship Is Required In Kansas
Trauma, strokes, medications, and accidents can all have life-altering effects on an individual’s ability to make informed legal choices. Particularly in the cases of dementia, alcoholism, or mental or cognitive disabilities, important decisions regarding finances, property, medical treatment, education, and care need to be made. The choice of an individual’s legal guardian is, perhaps, the most important decision that must be made for that person.
Under Kansas law, a legal guardian may be appointed when an adult person (18 years or older) is unable to make, communicate, or carry out responsible personal or social decisions and the person is impaired by a mental or physical condition. Physical conditions include but are not limited to: Alzheimer’s disease, strokes, traumatic brain injury, blindness, deafness, and drug or alcohol abuse. Examples of mental conditions include various forms of dementia, schizophrenia, bipolar disorder, and depression.
Such a declaration of incapacity and the subsequent naming of a legal guardian can be obtained through procedures initiated by interested parties through the local probate court.
The authority of a guardian also varies with the condition and capacities of the protected person. While limited guardianship is often appropriate in older individuals who may be unable to make sound decisions as they relate to their wellbeing, for example, guardianship may also be necessary for adults with developmental disabilities who may never be able to competently address their own health and financial needs.
How To Seek Guardianship
When someone decides that a legal guardianship for an adult relative or loved one is in the person’s best interest, the process to obtain legal guardianship will be similar to that of legal guardianship of a minor child. Generally, if the adult is incapacitated and unable to make decisions for him or herself such as medical and financial decisions and everyday life decisions, the person wishing to be named the guardian must file a Petition for Guardianship with the Court. A physician’s statement will be required as part of the Petition.
At the time the Petition is filed, the petitioner should set a hearing date for the preliminary injunction to be heard. A copy of the Petition should be served on the proposed adult ward at least five (5) days before the hearing. The hearing can be held quickly after the Petition has been filed, and the person petitioning for guardianship will have to testify at that hearing to determine whether there is sufficient cause to appoint a temporary guardian while the Petition is pending. At this time, the Court generally appoints someone to act as the temporary guardian. The temporary guardian has all the same powers and responsibilities as a guardian. The Court will have an evaluator appointed to evaluate the adult ward. The evaluator investigates the facts alleged in the Petition and provides a recommendation to the Court. While investigating the allegations of the Petition, the evaluator speaks with both the adult ward and the person named in the Petition as the proposed guardian. The adult ward has the right to ask for a different evaluator if the original evaluator is not suitable to the adult ward. The adult ward will also be interviewed by the Court visitor selected by the Court for the same purpose.
A Guardian’s Rights And Obligations
In addition to the legal rights of adults to be appointed a guardian and the legal requirements imposed on a Court to appoint a guardian, Kansas has set forth in K.S.A. 59-3075 a list of the specific rights and responsibilities that come along with being appointed a guardian over an adult.
The law provides that a guardian shall not be conferred all of the rights of the adult ward but shall be limited to such rights as are granted to the guardian by the Court after the appointment. It is important to note that every guardianship case will be different as to the powers and rights of the guardian over the adult ward right off the bat. In other words the Court has the authority to outline the powers and rights of the guardian differently in each case, if it chooses to do so. That said, the powers and rights of the guardian tend to be similar in each case – so there are some powers/rights that are pretty standard across the board.
In Kansas, the basic powers of the guardian over the ward are: the power to make decisions about the ward’s personal and social needs including the power to fix the residence of the ward and establish the basic living conditions of the ward; to chose where the ward shall live; to consent to medical or other professional care, treatment or service for the ward; and to make decisions about the ward’s education and training.
The guardian shall be under a duty to care for and manage the ward’s estate so the estate is not wasted or lost or valuably diminished. A guardian is even required to pay over to any other person entitled to it any money received in excess of the current expenditures necessary for the ward’s care, support, maintenance and education.
A guardian may not do anything that would be in violation of the restrictions, limitations or duties imposed by the guardian. Generally speaking a guardian may not make a gift of the ward’s property except as is authorized by law and subject to any limitations of the law as to the amount of the gift or the persons to whom the gift may be made or to whom the gift may be given.
Rights and power of the guardian are basically the same in the adult/child scenario (as in minor children). Kansas law does impose different restrictions on a guardian of a minor child versus an adult.
Different Types Of Guardianship
Kansas recognizes a number of different types of guardianship depending on the specific needs of the individual presented to the Court. Full or limited guardianship over a person. Under a full or general guardianship, the Court takes away all rights from the ward and transfers those rights to the guardian. Under a limited guardianship, some rights are retained by the ward and some are transferred to the guardian. The Ward has the ability to decide what rights should be transferred to the Guardian. For example, the Limited Guardian could have complete control over the Ward’s financial affairs, but allow the Ward to retain his or her right to choose their doctor or obtain medical information. A full or limited guardian over a person is usually required when the individual is unable, by reason of incapacity, to provide for some or all of their personal needs for health and safety. A limited guardian over an estate. Under a limited guardianship over an estate, the Court can transfer some or all rights in managing the Ward’s personal assets to the Guardian. This can also include a limited guardian over a specific asset, such as a real property. A limited guardian over an estate is generally used when someone who still possesses the capacity to manage certain aspects of their life , but needs help in specific areas. A limited guardian is also preferable for conserving your loved one’s money and assets. A limited guardianship over an estate is usually required when the individual is unable to manage some or all of their financial affairs able to conserve their assets and estate. Temporary guardianship. Temporary guardianships fall under the Kansas Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act and are provided to individuals for a specific period of time, generally 60 days. Temporary guardians (or conservators over the estate) are appointed by the Court in two circumstances. The first circumstance is to provide for an individual’s personal needs or general financial management during a period of time when there is an emergency that may jeopardize the individual’s health or estate. The second circumstance is when a proceeding is pending in Court to determine the individual’s need for a guardian, and the Court determines that an immediate need for a guardian may arise. A temporary guardian is only appointed as long as is necessary to meet the immediate needs of the protected person. Emergency Temporary Guardianship. This is a very limited option only where the person subject to the guardianship is not going to survive long enough for a Temporary Guardianship hearing, or otherwise requires an immediate appointment. An emergency guardianship has the same rights as a full guardianship.
Contesting Or Modifying A Guardianship
While a guardian is presumed to be the best person to care for an adult, there may be circumstances where an appointment or actions of a guardian is unfair, improper, or inadequate. In such cases an interested party may challenge the guardianship. In some situations, a guardian may be removed and replaced with another guardian. A guardian may be removed for any reason, including mismanagement of the ward’s finances, the incapacity of the guardian to assist the ward, neglect in performance of duties, or where removal is otherwise in the best interests of the ward. If an adult believes that the guardian is not adequately caring for the ward, the failure to perform a duty ought to be brought to the attention of the Court. A guardian should also take note of the ability of the ward, both upon an initial ruling and as time progresses. An adult may make different decisions in their best interests due to a change in their physical or mental condition. If the guardian fails to protect the best interests of the ward the guardian’s actions may be subject to court scrutiny. An interested person can initiate the process to have the guardianship revisited by filing a motion with the Court, or the Court may determine the need to review a guardianship or remove a guardian on its own motion. The statutory requirements for the Court to hold a hearing on such issues are intended to ensure the best interests of the individual under guardianship are protected and that any action undertaken by the Court is within its jurisdiction. In addition to allegations of improper conduct, the Court may change or discontinue the appointment of a guardian where the ward no longer meets the statutory requirements to warrant a guardianship. For example, a person who was initially found to be incompetent may regain their competency. Similarly, a person may lose their competency or become unable to receive or evaluate information relevant to the exercise of their power which could result in the extended need for a protected person or conservatorship.
Additional Resources For Guardians
Kansas Legal Services (www.kansaslegalservices.org) is a private, nonprofit organization dedicated to providing free civil legal services to low- and moderate-income Kansans. There are 13 local KLS offices that cover all 105 Kansas counties. While the primary focus of KLS’s work is helping those in need of legal services, each office also operates a homeownership preservation program and hosts the state’s Beta Social Security Reimbursement project. Since 1984, KLS has been the statewide administrator of a pilot project to provide free legal assistance to local law enforcement in protecting persons with diminished decision-making capacity from financial exploitation.
Kansas Department for Aging and Disability Services (www.kdads.ks.gov) houses the Office of Adult Protective Services, which is charged with investigating allegations of the abuse, neglect and exploitation of vulnerable adults living in the community. The agency provides resources and contact information for both the public and professionals who handle abuse and neglect cases. KDADS also oversees the Guardianship and Advocacy Commission , which provides an avenue for individuals to enforce their rights with regard to personal decision-making and makes guardianship recommendations to the Secretary of KDADS. The Kansas Long Term Care Ombudsman has served as the Secretary’s designee to implement the Commission’s advocacy efforts since 1993.
Kansas Guardianship Program (www.kcsc.org) is a nonprofit organization that provides volunteer guardianship services to individuals with intellectual and developmental disabilities. Operating under the auspices of the John E. and Louise F. Early Foundation, the KGP is affiliated with the non-profit Kansas City Kansas Community College and Blue River Valley Developmental Disability Services Corporation.
National Guardianship Association (www.guardianship.org) is a non-profit coalition of individuals and organizations dedicated to promoting the responsible and ethical delivery of guardianship services in the United States and around the world. The NGA’s website is home to a library of links to guardianship resources in the United States and abroad, as well as links to state and local guardianship organizations.