At times, a minor or impaired adult needs protection afforded to them under the legal system. When a person is not being properly cared for or is unable to care for him or herself, Kansas law allows the court system to appoint a guardian to make decisions on the person’s behalf. Administered by the court system, the law establishes specific parameters on how someone files and receives legal guardianship.
What is guardianship?
Guardianship is legal authority granted by the court that is designed to protect a person when that person is incapable of self-care or of acting in his or her own best interest. A guardian is given the ability to provide daily care and education, make medical decisions and manage the person’s finances.
Guardianship is a method of last resort and should be utilized only after other options have not been explored. An arrangement with family, friends or community groups to provide the necessary care and services such as managing finances and shopping can be arranged on an informal basis without the involvement of the court. The ultimate goal in any guardianship case is to eventually return responsibility back over to the individual when the time is appropriate. The court usually does not want guardianship to become a permanent solution.
1. The guardianship process starts with filing a petition
Guardianship is a complicated process and often starts with hiring an attorney. Lawyers have in-depth knowledge of the guardianship process and can help a family or individual decide if filing the proper paperwork for guardianship is the right decision. An attorney will review the case and present the best options.
The process of formally seeking guardianship starts by filing a petition with the court. The attorney prepares the petition and asks the court to appoint the people named in the petition as the guardian of a specific individual. The petition includes the name and relationship of the person seeking guardianship to the person who guardianship is sought. Testimony can be admitted to the court as to the mental state or needs of the person who is asked by the court to be put under the protection of the guardian. The petition also contains reasons for the involvement of the court in the case and the extent of the finances and estate of the person named in the petition.
2. Setting a court date and an examination of facts
Once a petition is filed, the court will set a court date for a hearing on the petition. The court will require that the person seeking guardianship appear in court at the appropriate time. A person might be named to represent whom the petitioner is seeking guardianship. That person is responsible for protecting the interests of the child or the person who is considered incapacitated.
The court could also order an examination of the facts in the case. Conducted by a professional, a report on the case examines the person’s mental state or the conditions under which the individual lives. The preparer gives his or her opinion on whether the individual should be placed under the authority of the court and a guardian appointed. The report also explores the person’s mental and physical condition and makes recommendations for treatment or other ways to improve the individual’s life. Essentially, the report gives the court unbiased information on the facts in the case.
3. Notices are sent out
Everyone whom the court deems to be a necessary party to the case must be sent notices about the petition and when the court date has been set. The notices can be sent to the relevant attorneys, family members of the person named in the petition and the individual seeking guardianship. The goal is to properly inform everyone about the petition and reasons that guardianship is being sought in the case.
4. Trial is held
The petitioner can seek either a trial by judge or jury. A judge usually hears guardianship cases, but in some cases, the petitioner will want a jury to decide the case. During the trial, the facts in the case will be presented and testimony will be taken. The judge or jury will decide what is in the best interest of the person named in the petition and whether the person filing the petition is a “fit and proper person” to be a guardian.
At the conclusion of the trial, the judge or jury could find clear and convincing evidence that the impaired adult or minor child would be best served if the person filing the petition is named the guardian. In that case, the court will draw up an order setting out the facts in the case and ordering the appointment of guardianship.
5. Filing a written oath of guardianship
Once guardianship is granted, the person granted guardianship will be asked to file a written oath of guardianship. The oath reflects that the guardian will execute the duties of a guardian and follow the terms set forth by the court.
6. Protecting financial assets with a bond of conservatorship
When a person’s estate or finances are part of the guardianship, the court may require a bond depending on the amount of assets. The court will set the amount of the bond, and it is designed to protect the financial interests of the person being placed under guardianship. It defends against theft, fraud, misrepresentation, or improper handling of assets.
7. Completion of obligations
Every individual who is appointed as a guardian or conservator of an estate must complete a basic instructional program. It covers the duties and responsibilities of a guardian or conservator prior to the court issuing the order of guardianship. The guardian is also required to file an initial inventory of assets estate with the court.
Other Questions About Guardianship When does a minor need a guardian?
Some children have undesirable home situations and need a guardian appointed other than their parent. The appointment of a guardian is designed to protect the child and put him or her in the best situation possible. Without guardianship, a caretaker cannot make medical choices, sign documents on the child’s behalf or enroll the individual in school. At 18, the person is no longer the guardian unless the child is considered incapacitated.
When is a temporary guardian needed?
In some situations, a person might be in imminent danger. In those cases, the court might consider temporary guardianship. The guardian will be assigned specific duties and powers to protect the individual from imminent danger. Often times, that can be protecting an individual’s finances, this is usually in cases were the person’s estate is being depleted without the person’s knowledge.
Can a private entity be a guardian?
Yes. Under Kansas law, a guardian can be either an individual or a private entity. The entity must be a nonprofit corporation that has been certified by the Kansas Secretary of Social and Rehabilitation Services.
If you are seeking guardianship of an individual, it is important to choose an attorney with both experience and compassion. At Oswald Law, we have worked on a variety of guardianship cases and know what it takes to ensure that decisions are made in the best interest of the person you feel needs protection. Contact us today to schedule an appointment.
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