General Questions about Elder Law

The Elder Law Practice of Scott E. Collins, PLLC

Protecting families from the loss of everything they own to the extreme cost of Long-Term healthcare.  We are here to serve the people of Southeastern Kentucky.

I have a Will that I did years ago, do I need to update it?

Yes, there are several circumstances where you need to update a Will. If your spouse has died or you have divorced, re-married or married for the first time since creating your Will, you definitely need to update your Will (as well as update your “Will-substitute” documents like beneficiaries of IRA’s or life insurance policies). If your will was done when your children were minors or if you have moved from one state to another, you need to update your Will.

How much does Estate Planning Cost?

Great question! We seek to use flat fee billing for most services we provide in the firm because everyone is anxious about the expense of legal work. Attorneys can be expensive, and unlike doctors for whom you can have medical insurance, no one has legal insurance.

The Supreme Court of the Commonwealth of Kentucky forbids the staff of a law firm from quoting a fee. Only the attorney is permitted to do so after understanding your specific needs. Instead of hourly billing where the clock is running for all the time we are working for you (and you will never know the cost until the work is complete, we prefer the flat fee arrangement so that you know the price of a service up front, before we begin.

We can tell you this, we make you this promise, our prices for service will always be less than the price of doing nothing! In fact, in our more advanced legal work, where prices can run between $7,000 to $15,000 per case for complete asset protection and long-term care planning, that cost will actually save or make you money. Even basic estate planning with a Will/POA/Living Will that can cost several hundred dollars per person, is a huge savings over the court costs and lawyer’s fees, if you don’t plan ahead. Yes, this can be expensive, but the value of paying $10,000 to save $100,000 from complete loss of all of your assets & home, makes great financial sense for most people.

My Will is up to date, is there anything else I should consider?

Absolutely! Your Will determines where your possessions and finances are distributed after you pass away. However, most people who do not do more comprehensive planning with us have nothing to pass along to heirs once they die. Why? Because the extreme cost of long-term healthcare, which in Kentucky is more than $80,000 per year (and on average the length of stay is 3.8 years), results in excess of $328,320 per person during their lifetime. Long-term healthcare planning is planning to preserve your estate, Will-based planning assumes you will have an estate left once you pass. Of course, we can help you with both.

What are the most important documents people should have?

Hands down, the most important documents you need is a Power of Attorney (POA, more on the importance of the POA below in #5).  The second most important document is a Will, and the third most important is a Living Will.

Without a Will the State of Kentucky determines who gets your possessions when you pass away. A Living Will places the person you chose in charge of your medical decisions of Life Support and Feeding Tube treatment (rather than the doctors) so if in the informed perspective of the person you designate removing that treatment is better for your care and comfort, it may be removed. Otherwise, the doctor has no choice but to keep those things in place until you pass away. This can mean prolonging days of care (which can at times be life-saving) than at other times it may hinder a more peaceful last days with family.

Why is POA so important?

Hands down, the most important document you need is a Power of Attorney (POA). This allows another person to make decisions if you are incapacitated. Imagine for instance you have a car accident and you are unconscious. When the Doctor does not have a person (even the spouse) who is legally authorized to approve or disapprove an action, the doctor makes that decision for you. Without the POA (Power of Attorney) you and your loved ones are bystanders as the doctors call the shots.

Think about another concern: You are on a trip, you lose your wallet, and you do not have any way to get to important documents while away or to get money to return home. The POA can act on your behalf to get money sent or access to a passport or proof of identity and access to Medical records. This can be the difference of days of frustration, compared to an hour for those that are prepared and have planned ahead.

I don’t have much, do I really need “Estate Planning”?

Honestly, maybe not. And, if you don’t need to do any planning, I am going to tell you. I would never lead you to pay for a service that you don’t need. But it is rare that a person doesn’t need some sort of estate planning, even if it is just a POA. Even if all you have is a couple of hundred or couple of thousand dollars in the bank, it needs to be protected so that it will be there for paying for your funeral or cremation, or for your heirs, or for your spouse. Doing nothing risks dying broke and saddling others with paying those final bills for you.

Why do I need to hire an attorney?

I get it, “no one likes an attorney until they need one.” But whatever Hollywood has caused us to feel about attorneys and the legal system, we are here to help, and your experience with us will be nothing but a relief and enjoyable. The reality is, for those that try to manage through these important life issues without a skilled professional, end up with a huge mess. Every week we see clients who attempted the Do-it-Yourself method, who downloaded something from the internet and are standing in Court with a Will that will not hold up to the Laws of Kentucky (no matter what that website tells you, remember you get what you pay for). Or even worse, the person we sit down with who did go to their family attorney for that POA (Power of Attorney), and the bank won’t take it because of the inadequate wording for the specific problems we face in our senior years.

Why do you need an attorney, because these matters are too important to not get them right! Our consultation is a short meeting to allow you to see if you can trust us. If you cannot determine from that meeting that we are going to put your mind at ease, that we have the legal skill and insight to solve your problems that are more complex than a google search, then please don’t hire us, go on down the street until you find someone that does provide that confidence and peace of mind to you. Not getting this right when you are making a plan to protect your lifelong savings, home, and retirement can cost you tens upon tens of thousands of dollars. Isn’t that why you hire an attorney? We want to save you from losing!

Why not just download something from the Internet?

Okay, I have to admit, I have downloaded from the internet. But even as an attorney, I had to write most of what was there because I know the laws and if the wrong things are stated or left out, the whole document can be worthless! You are not buying a piece of paper, what you are buying is the expertise to evaluate your life circumstances and alert you to any problems that may occur if x, y or z happens? When is the last time you downloaded a drug prescription? Never, right! Because the diagnosis and the assurance that interactions and side effects are not going to cause you great harm, requires that you take medications under the supervision of a doctor. This is needed to make sure the prescription brings the cure you need. This is why you need an attorney.

What is Elder Law and What does an Elder Law Attorney do?

An Elder Law Attorney is an estate planning attorney on steroids! All of the things that we plan for after our death is the focus of Estate planning (distribution of assets and personal property, as well as real estate). Elder Law focuses on all of that, as well as how to manage and protect it prior to our death. From about the time of retirement, we have special needs that other parts of the population do not have. Specialized retirement planning, tax considerations, development of Wills, Powers of Attorney, making financial preparations for a special needs child who will survive us, taking care of the healthcare needs and financial matters of an aging parent, scams and financial exploitation, long-term care needs (insurance/planning/benefits), Veterans pension planning, Medicare and Medicaid advocacy, Probate, Gun Trusts, Pet Trusts, business succession planning, Trust development and administration, Legacy planning and scholarship development, care giving as well as special support and navigation in coping with Alzheimer’s and various dementias.

These are very specialized areas of legal practice that need a law firm that focuses on the intricate problems you are facing.

Questions about Consultations

Do you do Free Consultations?

Yes, we do. We realize that some offices charge for the initial consultation. We do not. Our consultation is specifically designed 1) for you to be able to make a decision to hire our team for meeting your needs, and 2) for us to determine whether there is a good fit for a relationship of trust. Before you ever get to the consultation, we want to give you lots of help to 1) understand what your legal needs are, 2) whether or not you need an attorney, 3) if we are able to meet those particular legal needs, and 4) most of all, for you to understand how our law firm operates so that we can hit the ground running to solve your problems. We are here to serve.

MYTH: The initial consult is a free legal advice session. When an Attorney gives legal advice; they are liable if that advice fails. To give advice without supervising its implementation is called MALPRACTICE. And we don’t commit malpractice.

Our standard is Excellence in Service, and Excellence in Law. What we want to do is give you confidence in our ability to serve you and this is what the initial consult is for. We do not believe you should ever hire an attorney or a law firm without getting to know them first, and them getting to know your case, so that they/we can confidently tell you: “We care about what you are going through, you can have peace of mind, because WE’VE GOT THIS!!”

Who can come to the Consultation?

We want every key decision maker to come to the consultation meeting with you. There will be too much information for you to repeat it to others later. If they are not present, they always end up wishing they had been. If we do the initial consult and then need to do other meetings with those that couldn’t make it to that first meeting, the subsequent meetings will be billed at our hourly rate.

Don’t worry about getting legal info. We pre-screen our clients because we don’t want you to hire us if you don’t really need us. We are going to lead you through a process to educate you, give you free resources, direct you to better avenues to solve your problems, if that is what you need; perhaps we will even send you a video or enroll you in a seminar. No one wants to be misled, and we understand that.

What’s going to happen at the Initial Consultation?

We are going to treat you like you deserve to be treated. You have been pushed around, stressed, going without sleep, spending hours caring for others, and it is our job to help you out from under that burden. That will begin as soon as you come to meet us. Our staff will interact with you. It is not all about some hotshot lawyer showing you all that he knows about the law. (Our attorneys are greatn but that’s not how things get done around here).

We have several key positions on our team that are here just for you. You will get to meet them, including our Director of First Impressions and our Client Care Specialist who are here to do exactly what their titles say: Impress and Care. You will likely also meet our attorney representative and our Managing Attorney/Owner or one of the key staff attorneys.

We will get details of your situation, clarify the details that we have already received from you, get an update on what you have tried, what has or has not worked, the risks that you are facing and what kind of an outcome you desire.

From there we will lead you through what is involved in hiring us, and what the next steps will be, once you choose to hire us, to solve your legal dilemma.

Do you have flexibility to meet other than in your office?

We Absolutely do! Many of our clients have limited mobility or are already in a skilled nursing facility, and need us to come to them. But if we learned one thing from the COVID-19 pandemic, it is how to work remotely without slowing down. We can set up conference calls, video meetings, we customarily use a courier service, secure portals for document exchange of sensitive items, the only things we don’t have ready for you is a crystal ball or a magic wand (which sure would come in handy).

Questions about Veteran’s Pension

(Veteran’s Improved or Wartime Pension)

I served during a wartime period, but I never left the U.S., do I still qualify?

Yes, you do. Qualifying for VA Pension Benefits (not the same as retirement) depends on 3 things: When you served, and If you received an Honorable Discharge, and how long you served. For the time frame for the Wartime periods see our Practice Area Page. You must have served at least 90 days on active duty (beyond training), one day of which must have been in the wartime period (unless you are a Gulf War Veteran or later which congress requires 2 years of Active Duty). General discharges or other than honorable may also be upgraded to qualify (so long as you didn’t receive a dishonorable).

There are financial requirements and this is where we help!

I talked to the VA years ago and they said I don’t qualify! Is this true?

The VA or a service rep. like the DAV or VFW will tell you if you do or do not qualify. But SURPRISE! They are not going to tell you how to qualify. There are very detailed qualification standards that we help with. The exceptions and how to organize is the key to getting you qualified. And this is a big deal, because the VA Pension can be the difference in your spouse having care and protection or going without and being vulnerable to a healthcare disaster. I made a special video just for you on this topic. (Click here, insert VAP Vlog).

What documents do you need in order to complete the application?

Please bring your DD 214, all statements to provide proof of all income and assets that you (and your spouse) currently have, proof of all medical expenses that you currently have and your PVA Card for your property. We will do the rest to determine the strategies necessary for you to qualify for this benefit that you earned through your service to Our Country and the rest of us!

When will we receive a decision from the VA?

It normally takes about 6-7 months for the VA to decide your claim. This number can vary greatly due to the number of claims/back log that the VA has at the time of your claim. As soon as we receive a letter or an update, we will notify you immediately.

What is the VA doctor’s form that needs to be completed?

This form is like having a physical completed. The VA Form 21-2680 is very simple, but the doctor has to fill it out. He or she is able to write next to the check boxes on the form in order to elaborate on the current limitations of the veteran/surviving spouse. If the doctor has questions about the form, please give them our contact information. We are more than happy to walk them through the process.

The VA (Department of Veterans Affairs) sent a letter, but they want more information?

The VA will sometimes request additional information in the application process, if they need more information in order to decide the claim. This is completely normal and will not affect the amount of time that it takes to receive the decision letter (so long as you respond quickly). The letter usually has a deadline for your response, so contact us immediately, so we can gather the information for the VA.

Questions about Veterans Service-Connected Disability Compensation

How long will my claim take once it has been filed?

The amount of time that it can take for a claim to be decided, greatly depends on the VA. Typically, if you have filed a Supplemental Claim, it can be anywhere from 3-8 months before you receive a decision. If you have a Legacy Claim, we are unsure how long it will be before the VA will make a decision. Some Legacy claims take years to process. However, we can often assist you in moving your claim from a Legacy Claim to an AMA (Appeals Modernization Act) Claim, which will greatly speed up the claim. As soon as we receive a letter in the mail, we will notify you immediately.

I have received a 70% rating; how do I get 100%?

The next step to get a rating of 100%, is to file for unemployability. You may or may not be unemployable. There are several questions to address before you move forward. We can have a brief conversation with you to help you determine the best path forward. You may not be aware of the many benefits that come with making it to the threshold of 70%, such as long-term care benefits for the veteran. However, a determination of Individual Unemployability means that because of your disability or multiple disabilities, you are unable to work. Your former employer will need to fill out a form stating that because of your disability you are unable to work. Since filing for unemployability is not considered a new claim, we are unable to help you file this application due to VA Law. If you receive a denial letter from the VA regarding your unemployability claim, please contact our office immediately to see if we will be able to assist you in this claim.

To meet the requirement of Individual Unemployability you must have at least 1 service-connected disability rated at 60% or more disabling, or 2 or more service-connected disabilities—with at least 1 rated at 40% or more disabling and a combined rating of 70% or more, AND you can’t hold down a steady job that supports you financially (known as substantially gainful employment), because of your service-connected disability. Odd jobs (marginal employment) do not count.

What documentation do you need to submit with my application?

Please send all medical records and VA decision letters regarding your current disability. In order to determine what to submit, we need to know why the VA has decided against you. The decision letters will help us determine the argument that the VA is making and how to counter it. The medical records will allow us to determine if we need to submit new evidence or just argue about the evidence that is currently in the VA record.

The doctor refused to complete the VA Form that you gave us. What do we do now?

This is completely normal for a doctor to refuse to complete these forms. We can move forward by finding another doctor to complete the form, or sometimes it is possible to move forward with the evidence that is already in your VA files. Even if we cannot get a private doctor to complete the form (Disabilities Benefits Questionnaire, DBQ), the VA will complete their own DBQ when you go to the C&P Exam (Compensation and Pension Exam), so there is no need to worry. Please contact us, and we will guide you in in your decision about which direction you should take.

What should I say when I go for the C&P Exam?

You want to explain in as much detail as possible how the disability impacts your daily life (the frequency, the intensity, and the spillover impact). Discuss the frequency of the pain and the intensity of the pain (how would this feel to the average person). It can be beneficial to have your spouse there in order to make sure that you explain every aspect of how your disability affects your life. Tell stories and give examples of what the impact is.

Questions about Senior Care

I don’t want to place my mother in a nursing home, are there other options?

Yes, there are many options. Veterans have an option through VA Healthcare Benefits, Medicaid will pay for nursing home care, but there is also an in-home care option called “Home and Community Based Waiver Program,” and Veteran’s Wartime Pension provides a cash amount directly to the Veteran each month to assist with paying for in home caregivers. There are several high-quality caregiving companies in all areas of the state to find help, as well as many private caregivers.

Financial planning with our firm can help make these options affordable and give you pointers for choosing the best option for your situation.

My father has Alzheimer’s and I can’t find a facility for placement, what do I do?

Kentucky has only about 600 beds that are Medicaid eligible for Alzheimer’s patients. It can be very difficult to find placement, especially if your loved one is in the stage of being a flight risk or violent. It is important to find a facility with locking doors for security and equipped with a staff that can meet the needs of Alzheimer’s patients. Typically, such facilities are private pay, and they are more expensive. Therefore, planning as far in advance as possible and seeking placement as soon as possible is very important.

The nursing home said they don’t have any Medicaid beds, what does that mean?

Before a skilled nursing facility can receive payments from Medicare or Medicaid they have to enroll and be approved by the State of Kentucky. Once a facility is qualified, they call these beds Medicaid beds. Each facility is allocated a certain number of beds (while they call the beds approved for Medicaid, but it is the facility that is approved for Medicaid not particular beds). There is a requirement that Medicaid only pay for semi-private rooms. Private (single bed rooms) are not Medicaid eligible.

Facilities will often rely on the “Medicaid Beds” excuse as a way of turning away potential patients. They will do this to keep the ratio of private pay (higher paying patients) to Medicaid recipients, or to keep higher needs patients in lower numbers because they demand higher levels of nursing supervision and therefore cost the facility more money for payroll.

What can I do if I am having a dispute or concern about the quality of care we are receiving from the nursing home or in-home caregivers?

The Commonwealth of Kentucky has an Ombudsman that advocates for residents of nursing homes, personal care homes and family care homes to improve care and get good service. There are also individuals appointed over regions of the State who work with specific care facilities. More information can be found at https://chfs.ky.gov/agencies/dail/Pages/ltcomb.aspx.

There is also a very valuable resource for screening potential caregivers for past quality issues or reporting Caregiver Misconduct through the Kentucky Adult Caregiver Misconduct Registry (https://prdweb.chfs.ky.gov/KACMR/Home.aspx).

Questions about Probate

I have been appointed administrator, what happens next?

Once you are appointed Administrator or Executor, you will need to open an Estate Account at the bank of your choice with the Order from the Court appointing you, the Death Certificate and EIN that we have obtained for you. All assets that your loved one had, will need to be placed into this account. In 60 days, we will take an inventory of everything that your loved one owned and present it to the Court. A paralegal will be contacting you when it is close to that deadline to gather the necessary information to go on the form. After the inventory, there is a long waiting period of 6 months minimum where virtually nothing happens. This waiting period is for bills to arrive, and if necessary be negotiated. At the end of 6 months the bills are paid, taxes are paid, and then final disbursements of “inheritances”, if there are any, can be made and the final settlement is presented to the Court. For many Probate cases this process will take a full calendar year.

How long will the probate need to stay open?

There are two different routes in the probate process. If you are moving forward with a probate to dispense with administration, this will be a one-time court appearance. In order to qualify for Dispensing with Administration, the decedent cannot own real property and the amount of assets will need to be below $15,000.

If the decedent does not meet the two requirements above, we will be using the normal probate method. This process will take a minimum of six months and we must wait the six months before it is able to be closed. See FAQ 1 above.

Am I able to go ahead and write checks to the heirs?

No. Creditors can claim that your loved one owed them money. We have to make sure that all bills are paid to those creditor’s claims before any money is distributed. When we get close to the end of the six-month period, we will ask you for the bank statement. We will tell you what bills need to be paid and how much money each heir will receive. We also have to create documents that each heir will sign stating that they have agreed with the distribution amount. Before you write any checks from the Estate Account, contact our office to make sure that it is alright to do so.

The decedent owned several different properties, what do we need to bring to the office?

Please send us all recorded deeds and PVA cards that correspond with each property. We will need to review the deeds to determine how they will need to be divided amongst the heirs.

What happens when we are ready to close the estate?

When it is time to close the estate, we will contact you for the latest bank statement for the Estate Account. We will also research the Court file to determine if any claims have been filed against the Estate. Once we have this information, we will create a letter explaining what was deposited into the Estate Account, how much was withdrawn, the cost of attorney’s fees, and how much each heir will receive. We will also create a waiver for each heir to sign and have the administrator/executor sign the informal settlement form, once completed.

My Dad died and his wife has a Will he created that gives me nothing, is there anything that I can do to get my fair share?

Disputing a Will is a very difficult process, and short of witnesses to the contrary, your father’s Will is likely to stand. We often have strong feelings about what is fair, but if your Father was of sufficient mental capacity to sign a Will with an attorney, who is an officer of the Court, the likelihood is you will lose this battle.

When we submit this information to the court, will the case be closed immediately?

No. When we turn it into the court, the clerk’s office will place a notice in the newspaper. This notice will be to all creditors that this is their last chance to file a claim. After 30 days, the judge will review the settlement and either grant or ask for additional information. They will send us a copy of the signed settlement in the mail. Once we receive this document, we will officially close out your probate case in our office.

Questions about Medicaid

I have to place my loved one in nursing facility, but I cannot afford to privately pay for that, what do I need to know most?

There are multiple ways to pay for long-term care. However, it really pays to speak with an Elder Law Attorney first. We do a financial assessment for long-term care, in order to ensure that you have prepared for the smoothest, most cost-saving means possible for receiving long-term care benefits, under the VA Pension or Medicaid program. Care should be taken, to take advantage of every exclusion possible under these rules, so that your money will last as long as possible and your loved ones are left with money for their needs as well.

What does a 5-Year Look Back mean?

Rules under the Medicaid program currently give the State of Kentucky the right to look at all of your financial transactions from the past five years. The purpose of this screening is to determine if you have given anything away instead of receiving fair market value for those items. This can be a cash amount given to a family member or a car to a grandchild for a graduation gift.

These uncompensated transfers result in a penalty of a period of denial/ineligibility from the program. This penalty does not begin to run until application is made to the Medicaid program. I have created a video on this specific topic just for you. (Click here to see my video) Vlog on 5-year lookback.

Will I will lose everything I have worked hard for if I apply for Medicaid, is this true?

It is true that Medicaid will require you to spend all of your assets before they will assist with your long-term care, UNLESS you do proper planning. Even your life insurance policies and your home are at risk, without proper planning.

I don’t want to have to apply for Medicaid myself, is that something I can hire ELG (Elder Law Guidance) to do?

Part of our Medicaid Planning services is to apply for Medicaid for you. This ensures that the application is done correctly, and especially in more complicated asset protection situations, explaining to the Department of Community Based Services (DCBS or Medicaid) how the rules have been met is extremely important or otherwise ineligibility or penalty will occur.

If someone is in the hospital and needs nursing care, how many days will insurance pay for, until you can get Medicaid to kick in?

Medicare will pay for 20 days of skilled nursing care, if it is preceded immediately by a 3 day stay of being “admitted” to the hospital. Often, the hospital will only admit for “Observation” instead of full admission. This prevents Medicare from kicking in. At midnight of the second day of Observation the hospital must admit the patient, however, many will not, unless you raise the issue with them.

Once, the 20 Medicare days have been used, a person who has a Medicare Supplemental Insurance can receive up to another 80 days of skilled care coverage (if they remain eligible). In many cases the supplemental insurance will determine that there is no need for them to continue to pay, by stating that your loved one is not “progressing” in their rehab. This can be appealed to the Centers for Medicare and Medicaid, however, the standard for continuing coverage is not whether or not one is “progressing.” The standard is, if the rehabilitation is necessary for preserving or stabilizing the condition, payments should continue.

In most cases, you should contact an elder law attorney any time you enter a skilled facility regardless of prior planning, who is paying the bill or the anticipate length of stay. Even a short stay in a facility can open up many opportunities for quick planning that would save you money and get greater access to coverage.

What do I do if I am denied Medicaid, does that mean I cannot be eligible?

Medicaid denials are cause by so many different factors that it is hard to know the best way forward without analyzing your situation. Generally, most denials can be overcome quickly, if not immediately. For instance, if one person from a married couple needs Medicaid coverage for nursing home care, we can almost always get immediate eligibility.

What type of documents do I need to provide to ELG (Elder Law Guidance) so I can qualify for Medicaid?

We will provide you with a complete checklist and a questionnaire that will guide you seamlessly through the process. You can click here for a download of the items we will need to review and gather.

Must an applicant’s home be sold to qualify for Medicaid?

No, there are 6 exceptions and several other methods of caring for your home without having to sell it. Depending on your needs, preferences and family situation, one of these methods will provide the peace of mind and control you deserve at this stage in your life to get the care you need and preserve the dignity of making your own choices.

What assets can a married couple retain and still have one spouse qualify for Medicaid benefits?

The Medicaid rules for qualifying as a single person and as a married couple are different. A couple still has the right to retain the home for the one spouse (called the “community” spouse) to still have a place to live while the other needs care. Assets are divided 50/50 and the person applying for Medicaid must not have more than $2,000 in their possession. The Community Spouse may retain up to $128,640 (for 2020). NOW those are the rules, BUT there are many exceptions to the rules, so that much more of the family’s assets can be used or protected. We have a tool-box full of options on how to protect you, your assets and gain coverage in your time of need.

Questions about Guardianship

How do I go about getting guardianship for someone?

Any interested person concerned that someone needs financial oversight or is showing signs of physical deterioration, the potential for exploitation or is generally not able to care for oneself, may file a petition for determination of disability. This court process moves with the assistance of the District Court Clerk, an office that handles all guardianship and conservatorship matters. Some of Kentucky’s larger counties in Kentucky have a Mental Health Clerk to work with the Petitioner. Conservatorship and Guardianship trials are strictly confidential, and the court will keep all records confidential and secure.

Kentucky is unique in its requirement to hold a trial by jury in all guardianship and conservatorship petitions.  Evidence is collected by an interdisciplinary team (physician, psychologist and social worker) and a trial is held during, which evidence is presented to the Jury. At the end of the trial, the Jury makes its determination. The findings are read to the judge, after which an immediate appointment is made.

The appointment of a guardian or conservator can be an effective solution to those in difficult situations where there is reason to suspect that financial management by someone other than the Respondent is needed. The Respondent is the person whom is being considered in need of a Guardian or a Conservator, often called the Ward. The guardian is the person in charge of the Ward’s health and physical situation. The conservator is the person in charge of the Respondent’s money and financial assets.

How long does a guardianship/conservatorship last?

Depending on the result sought and the decision of the Judge presiding over the Guardianship Hearing, the Court may find that the respondent be appointed either a Full Guardianship or a Limited Guardianship, or a Full Conservatorship or Limited Conservatorship, or some combination of these. Of course, the decision could be that no guardianship is necessary. There are also options for an emergency appointment for either guardian or conservator.

Limited Guardianship or Limited Conservatorship last for any length of time that the Judge determines, not to exceed 5 years. The Judge may call for a review in 6 months or five years, and if no decision to review is made, the guardianship will automatically dissolve and expire. However, a full guardianship/conservatorship is permanent.

How quickly can we get a guardianship in place?

An emergency petition must be acted upon within 10 days of filing. After the hearing to make the emergency appointment, another hearing to establish the permanent guardianship must take place within 60 days. Don’t get discouraged if this doesn’t happen. The Court can experience delays for various reasons. One of the primary reasons for a delay may be for the Interdisciplinary Team to evaluate the Respondent. The Interdisciplinary Team is made up of a physician, psychologist and social worker, all of whom must conduct a face to face interview with the person who is being evaluated for being determined legally disabled. Once completed, each member of the interdisciplinary Team prepares a report and issues it to the Court.

A hearing is held before a judge and jury and the jury, when presented with clear and convincing evidence, makes the decision on a determination of disability, which is required in order to appoint a guardian or conservator. The jury component can be waived if the 3-person interdisciplinary team (IDT) reports unanimously recommend that the Respondent be place in a guardianship or conservatorship.

Based upon the recommendation of the jury or IDT, the judge will select the guardian and/or conservator, and clarify the limits on the powers of the guardian/conservator.

Does the Court provide any supervision of the Guardian?

Guardian law in Kentucky requires that a guardian must periodically file reports with detail on any actions taken by the guardian, for which the guardian is held personally responsible. This report must be filed immediately upon being appointed as the guardian/conservator, and then every 12 to 24 months thereafter, as the Court chooses. The Conservator must get a dedicated bank account for the Respondent’s income and assets. Major financial decisions must receive the prior approval of the Court before taking action, like selling Real Estate.

The courts of the Commonwealth of Kentucky have defined and oversee the process for conservatorship. The consideration of appointing a conservator/guardian is a serious matter as this appointment results in an individual surrendering decision-making authority to another, a matter to never take lightly. The process may remove the Respondent’s right to vote, possess firearms or drive an automobile.

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Considerate & Convenient Counsel

Call us at 859-554-3462 to let us help you begin to plan for the future. Our lawyer is happy to meet with you at your home or any location that is most convenient for you. If you’d prefer to reach us via email, please contact us online. Your initial consultation is free, and we are here to help.