Ky.gov
Effective: 8/1/2023

25.3 Adult Guardianship/Conservatorship

Legal Authority

Introduction

​​​​​​​​​The Cabinet for Health and Family Services (CHFS/Cabinet) is a guardian of last resort and is not ordinarily or customarily appointed unless there are no other suitable individuals available.​​​​​​​​​​​​​​​​

Practice Guidance

  • According to KRS Chapter 387 the social worker shall, when possible, be chosen from among employees of the Cabinet residing or working in the area, and there shall be no additional compensation for their service on the interdisciplinary evaluation team.
  • To serve on the interdisciplinary team (IDT) the SSW must meet the qualifications of KRS 335.080(1)(a), (b), and (c) or 335.090(1)(a), (b), and (c).
    • To qualify under 335.080(1)(a), (b), and (c):
      • Is at least eighteen (18) years of age;
      • Is a person of good moral character;
      • Has received a master's degree or doctorate degree in social work from and educational institution approved by the board;
    • To qualify under 335.090(1)(a), (b), and (c):
      • Is at least eighteen (18) years of age;
      • Is a person of good moral character;
      • Has received a baccalaureate degree in social work or social welfare program accredited by the Council on Social Work Education; or
      • Has received a baccalaureate degree and has completed courses equivalent to a social work or social welfare program as determined by the board. 

  • An SSW with a related degree may request a college or university with an accredited social work program to determine if the course work in the related degree meets the course work for a social work degree. 
  • If the equivalency standards are met, the SSW submits the review and determination by the university to the Kentucky Social Work Licensure Board for approval. A link to the licensure board can be found on the Division of Occupations & Professions website.
  • When an SSW is ordered by the court to serve on an IDT that does not have the required degree or certification, the SSW notifies the court and the Office of Legal Services (OLS), in writing, that the SSW does not meet the qualifications listed above. 
  • If the court does not rescind the order, the SSW will consult with OLS for next steps.. 


Procedure

If no individuals are willing and able to serve as guardian, the SSW:

  1. Consults with the family service office supervisor (FSOS) or designee to determine that:
    1. An urgent and bona fide need to initiate the action exists;
    2. It is the least restrictive measure, and there are no alternatives to guardianship;
    3. The adult is a full-time resident of Kentucky for at least the previous six (6) months that is not a hospital, treatment facility, correctional facility, or a long term care facility;
    4. The adult is able to be physically located;
    5. The adult has not been convicted of, pled guilty to, or entered an Alford plea for a sex crime as defined in KRS 17.500 or an offense that would classify the person as a violent offender under KRS 439.3401;
    6. Filing the petition is in the best interest of the individual; and
    7. Staff have explored and determined there is no other suitable person or entity available and willing to act as guardian.
  2. Conducts a safety and risk review with the FSOS, service region administrator (SRA), or designee, and invites the guardianship FSOS or designee to participate prior to initiating a guardianship/conservatorship court process. 
When the regional decision is made that the Cabinet may need to serve as the guardian or conservator, the SSW:

  1. Completes the AOC-740 Petition to Determine if Disabled along with the GF-01 Request for Guardian Information form and sends them to the guardianship FSOS or designee for review;
  2. Upon approval from guardianship, will receive a completed, signed, and notarized AOC 745 Application for Appointment from the guardianship FSOS or designee in addition to the submitted and reviewed AOC 740; and
  3. Files both the AOC-740 and the AOC-745 with the district court and the SSW signs the AOC 740 as a representative of the Cabinet.  (the signature is not notarized)
  4. As the petitioner, may be required to testify at the hearing to present facts supporting the need for a guardian/conservator and the disability of the adult. 1

If the referral for guardianship is denied by the guardianship FSOS or designee; and Department for Community Based Services (DCBS) staff feel the referral is warranted, the supervisors of both departments shall inform their division directors.
  1. The directors or designees will review the referral along with documentation and speak with the guardianship FSOS or designee to determine why the referral was denied to work toward a resolution. 
    1. If division directors are unable to come to a resolution, the matter will be presented to the commissioners of the respective departments who may bring in a neutral party to review the referral for final determination.

If after the non-emergency petition is filed, an emergency arises that would place the adult in danger of serious impairment to their health or safety if immediate action is not taken, the SSW: 

  1. Contacts the SRA or designee to discuss the situation and considers the least restrictive measures including all applicable services in SOP 25.2 Involuntary Protective Services;
  2. Conducts a safety and risk review with the FSOS, and service region administrator (SRA), or designee, and invites the DAIL/Guardianship FSOS or designee to participate prior to initiating an emergency guardianship/conservatorship court process.  
  3. Signs the AOC-747 as a "Representative of the Cabinet for Health and Family Services;"
  4. Testifies at the emergency hearing which is held within forty-eight (48) hours, or when the court sets the hearing time; and 2​​
  5. Ensures​ a copy of the AOC-748- Order for Emergency Appointment of Fiduciary and the completed GF-01 Request for Guardian Information form​ is presented to the DAIL, Division of Guardianship regional supervisor or designee, if DAIL is not present at the hearing. 

In completing the IDT evaluation report the SSW, at a minimum, addresses the following:

  1. The individual’s relationship with family;
  2. The individual’s functioning within his/her environment;
  3. The individual’s ability to perform activities of daily living and instrumental activities of daily living;
  4. Any neglect, abuse, exploitation, or self-neglect history; and
  5. Any alternatives to guardianship/conservatorship.

In the absence of court directives to the contrary, the IDT evaluation may include DCBS case data no more than three (3) months old and the SSW:

  1. May attach a narrative of the IDT evaluation to the court form(s);
  2. Submits a single or joint report; 
  3. Reviews all IDT members’ evaluations if the SSW testifies on behalf of the IDT team;
  4. Routinely has sixty (60) calendar days from the filing of the petition to complete the IDT evaluation report, except for emergency guardianship petitions; and
  5. Submits the IDT evaluation report to the court and provides copies to the attorneys and/or guardian ad litem ten (10) working days prior to the hearing.


​Footnotes

  1. ​It is recommended to maintain an active case when possible until a guardian/conservator is appointed, ​​and the case is transitioned to DAIL. 
  2. Upon court approval of the emergency guardianship, APS staff should not be sworn in as guardian/conservator on behalf of DAIL.  


Documents

Revisions

​​7/28/2023 Addition: ​
According to KRS Chapter 387 interdisciplinary team (IDT) members, whenever possible, are chosen from among CHFS employees residing or working in the area.   the social worker shall, when possible, be chosen from among employees of the Cabinet for Health and Family Services residing or working in the area, and there shall be no additional compensation for their service on the interdisciplinary evaluation team.

  • To serve on the IDT the SSW must meet the qualifications of KRS 335.080(1)(a), (b), and (c) or 335.090(1)(a), (b), and (c).
    • To qualify under 335.080(1)(a), (b), and (c):
      • Is at least eighteen (18) years of age;
      • Is a person of good moral character;
      • Has received a master's degree or doctorate degree in social work from and educational institution approved by the board;
    • To qualify under 335.090(1)(a), (b), and (c):
      • Is at least eighteen (18) years of age;
      • Is a person of good moral character;
      • Has received a baccalaureate degree in social work or social welfare program accredited by the Council on Social Work Education; or
      • Has received a baccalaureate degree and has completed courses equivalent to a social work or social welfare program as determined by the board. 
    • ​If the court does not rescind the order, the SSW completes the evaluation and submits it to the court, the SSW will consult with OLS for next steps.. ​

7/28/23 Deletion

The SSW serves at no additional compensation.

  • Be a licensed clinical social worker; 
  • Be a licensed social worker; 
  • Be a certified social worker; 
  • Have a baccalaureate degree in social work or social welfare; 
  • Have a master's degree in social work; 
  • Have a doctoral degree in social work; or
  • Have a baccalaureate degree in a related field, two (2) years' experience in a social work capacity, and the course work in the related field meets the equivalent standard for a social work program.
​2.  Conducts a safety and risk review with the FSOS, service region administrator (SRA), or designee, and invites the guardianship FSOS or designee to participate prior to initiating a non-emergency guardianship/conservatorship court process. ​