Stepping Into The Guardian Role
If as the days go by, you discover that the decisions your husband, wife, parent, relative or friend once made, are now being neglected, your assistance may be needed. An adjudicated disabled adult is a person 18 years of age or older who, by decision of a judge or jury, is found to lack the capacity to manage the essential requirements for their own physical health or safety. When a judge or jury finds that an adult lacks this capacity, the court may appoint a Guardian for the disabled adult.
In Kansas, there are orderly legal and judicial procedures in place to ensure the rights of the disabled person / Proposed Ward. Consequently, while you may feel that a guardianship is in your loved one’s best interest, it is equally important that you are aware of the responsibilities associated with the guardianship process.
Petition for Guardianship
The first step in being appointed as Guardian is the filing of a petition. This legal document is generally prepared by an attorney and includes all relevant information regarding the Proposed Ward and Guardian. In addition, it will tell the court why a need for a guardianship exists, names and addresses of the nearest relatives, and the names and addresses of those who can provide testimony that the Proposed Ward is in need of a guardianship.
Once a petition has been filed, the judge will order that an attorney be appointed to represent the Proposed Ward during all stages of the proceedings. This attorney is referred to as the Guardian Ad Litem (GAL). The GAL will want to meet with the Proposed Ward, Proposed Guardian and stand-by, as well as, close relatives or caregivers before the hearing.
The hearing is generally held before a judge, but may be held before a jury by written request. During the hearing, the judge will listen to statements of counsel, testimony of witnesses, and the reported opinion of the GAL. At the conclusion of the hearing, the judge will decide if there is clear and convincing evidence that the Proposed Ward is a disabled person.
If the court finds that there is not enough evidence, the court will terminate the proceedings. However, if the court finds the Proposed Ward is a disabled person in need of a Guardian a guardianship will be ordered. You will then need to file a written oath of guardianship for the appropriate letters to be issued.
As Guardian, you are responsible for the Ward’s support, care, comfort, health, and maintenance. You are to see that your Ward gets the medical, dental, grooming, and other professional services that the Ward needs. In addition, if the Ward does not have enough money to pay for what is needed, it is your responsibility to apply for government assistance programs that may help pay for these services.
You are not required to spend your own money for any of these expenses, but you may be responsible for seeking the money needed from the Ward’s income and assets. However, if you spend more or incur debts greater than the Ward can afford, you may be held personally responsible for those amounts. As such, it is necessary to keep detailed records of all income and expenditures.
Termination of Guardianship
Your responsibilities as Guardian will continue until the court relieves you of the obligation. This may occur in one of several ways — the termination of the guardianship, the death of the Ward, or upon your resignation or removal.
First, the guardianship will terminate upon the death of the Ward. Upon the passing of your Ward, you must notify the court, file a death certificate, petition the guardianship be closed, and prepare any final accounting requested by the court.
Moreover, if you wish to resign, or if the guardianship should be terminated because it is no longer necessary for the Ward, you must petition the court for permission to resign or to terminate the guardianship and file a final report. If you are resigning as Guardian, and if the Ward remains disabled, you will need to request the court to appoint a Successor Guardian.
Finally, it is possible for the court to remove you as Guardian if it finds that you are not performing all of your duties effectively and there is an imminent danger that the physical health or safety of the Ward will be seriously impaired unless immediate action is taken. Since you will be assuming some very important responsibilities for the Ward, a Guardian is subject to the control and direction of the court at all times and in all things.
It is through the Kansas statutes that you are charged with making decisions in the best interests of those who are not able to manage life in their own best interests. While many are willing to step-up to this challenge when their loved one is in need, there is a community of disabled adults that do not have such needed family support. If you desire to help, you may become a Volunteer Guardian through the State of Kansas Guardianship Program (785.587.8555). By working together, judges, individuals, and corporations can ensure that the rights of disabled adults are protected.
Malissa L. Walden, Esq. ©2006