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The last thing anyone wants to think about is not being able to take care of oneself or having to depend on loved ones. Worse, yet, is having to be a loved one and not being able to take care of them.
Even though these are not pleasant things to think about, they are things that every responsible adult should consider. Nobody plans on having a stroke, being in an automobile accident or developing Alzheimers or dementia. Sometimes life’s catastrophes cannot be avoided, but oftentimes, they can be planned for.
One of my duties as County Attorney is to assist persons who file what we commonly call “disability petitions.” These are not the same as filing an application for Social Security Disability. Disability petitions under Kentucky law are used when someone lacks the mental and/or physical faculties to adequately tend to their basic welfare and/or financial needs and may need to have a guardian appointed to oversee these issues. This may mean that they are not able to make provision for food, shelter, clothing or medical care. It also can mean they do not have the ability to manage his or her financial affairs.
The process that people have to go through for a disability petition can be daunting. The first thing that happens is the person seeking the petition meets with the County Attorney and files the petition and application to be appointed guardian.
The person seeking to be appointed as guardian must appear before the District Court to be appointed on a temporary basis. The District Court requires that person to take an oath and post a bond. The disabled person is then appointed an attorney called a guardian ad litem to represent his or her interests in the proceedings.
The Court will then enter an order requiring that the disabled person be examined by three individuals: a social worker with the Cabinet for Health and Family Services, a medical doctor and a qualified mental health professional. These individuals will each file a report with the Court opining whether they believe the person is disabled with regard to the management of his or personal and/or financial affairs.
Even if all three professionals agree that the person is disabled, the Court must still schedule the matter for a jury trial before a District Court jury. The County Attorney will present the case to the jury, and the disabled person will be there with their court-appointed guardian ad litem who may cross-examine any witnesses and represent the interests of the disabled person. The jury will then make a finding of whether the person is disabled, partially disabled or not disabled with regard to his or her personal and financial affairs. Based on that finding the judge will then appoint an appropriate guardian or conservator, if needed.
This seems like, and is, a daunting process if you are the disabled person or the loved one trying to get help for someone who is disabled. The good news is that you can do some planning and possibly avoid this process altogether.
I would encourage anyone over the age of 18, regardless of whether you are a millionaire or surviving from paycheck to paycheck, to discuss with an attorney whether a power of attorney is appropriate for you. A power of attorney is a document that you can prepare in advance of life’s events to designate who you want to take care of your affairs when you no longer have the capacity to do so. While it is not 100 percent certain that having a power of attorney will keep you from going through this process, it certainly does help and also gives you a say in whom you want to take care of your personal business.
If you do have the misfortune of having to navigate the disability process, please rest assured that at the Carroll County Attorney’s Office, we strive to make it as pain-free as possible for you and your loved ones. We believe that these matters must be handled with the utmost dignity and professionalism and making your life easier during this trying time is always our first goal.