In the State of Kansas, a guardianship or conservatorship is an attempt by the state to provide help and protection for a person when that person is incapable of acting in his or her own best interest. A guardianship refers to the need for assistance with physical health, safety or welfare. A conservatorship refers to the need for assistance with managing a person’s estate or business affairs. A guardianship or conservatorship is not necessarily intended to be forever. The State’s objective is to restore the person to complete decision-making capacity and to close the guardianship as quickly as possible, according to the Kansas Guardianship Program.
In order to gain the legal right to assist the person in need of care, a guardianship and/or conservatorship must be filed and the Court becomes involved. The Court subsequently appoints a Guardian and/or Conservator over the person and/or their estate/property. When discussing guardianships and conservatorships, we generally are referring to one of two types of individuals in need: adults or minors.
An individual over the age of 18 is considered a legal adult. Adults are assumed to be capable of making their own health and financial decisions unless a court determines otherwise. If a mental or physical condition renders an adult incapable of making sound decisions and acting in his or her own best interest, the court may appoint someone to make decisions on that person’s behalf. A guardian is appointed to make decisions relating to the individual and a conservator is appointed to make decisions relating to the individual’s finances. In Kansas, adult individuals are only deemed in need of a guardian if they are impaired AND there are no appropriate alternatives for meeting essential needs.
A minor who needs a guardian means a person under 18 years of age who otherwise meets the definition
of an adult with an impairment, as described above. Petitioning for a Court appointed guardian allows an adult, other than the child’s parents, to legally care for the child and serve the child’s best interest. Children without family members that are fit, capable or willing to care for them may be eligible for guardianship. If the minor has an impairment and their impairment is expected to continue beyond the age of 18, when a guardian is appointed for such a minor, the orders can follow the minor into adulthood. You may not be aware, but a parent is not automatically the guardian of an impaired son or daughter when the child becomes 18 years old. If a parent wishes to become the guardian of his or her impaired adult child, they will need a court order to be appointed the guardian of such child. Parents of children with severe mental or physical disabilities will find themselves using this legal option so they can continue care for their impaired child into adulthood.
If you have a question about guardianship and conservatorship, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on estate planning, Medicaid and long-term care planning, business formation, family business/small business succession planning, probate, trust administration, real estate, and related matters.
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