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AN ACT relating to disabled persons. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 387.530 is amended to read as follows: 3
(1) A petition for a determination of partial disability or disability and the appointment 4
of a limited guardian, guardian, limited conservator, or conservator may be filed by 5
any interested person or by an individual needing guardianship or conservatorship. 6
The petition shall set forth the following: 7
(a) The name and address of the respondent; 8
(b) The date of birth of the respondent, if known; 9
(c) The nature and degree of the alleged disability of the respondent; 10
(d) The facts and reasons supporting the need for guardianship or 11
conservatorship; 12
(e) A description and approximation of the value of the respondent's financial 13
resources, including government benefits, insurance entitlements, and 14
anticipated yearly income, if known; 15
(f) The names and addresses of the respondent's next of kin, including but not 16
limited to a: 17
1. Spouse; 18
2. Relative of half-blood; 19
3. First cousin; 20
4. Aunt; 21
5. Uncle; 22
6. Nephew; 23
7. Niece; 24
8. Person of a preceding generation as denoted by prefixes of grand, 25
great, or great-great; 26
9. Stepparent; 27 UNOFFICIAL COPY 22 RS BR 850
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10. Stepsibling; or 1
11. Fictive kin, if known; 2
(g) The names and addresses of any parents, stepparents, or adoptive parents, if 3
known; 4
(h)[(g)] The name and address of the individual or facility, if any, having 5
custody of the respondent; 6
(i)[(h)] The name, address and interest of the petitioner; 7
(j)[(i)] The name and address of the petitioner's attorney, if any; [and] 8
(k)[(j)] Whether any civil or criminal action is pending against the 9
respondent, and whether any custodial order is in effect regarding the 10
respondent, if known; and 11
(l) The name and address of any person or entity appointed by the respondent as 12
respondent's attorney in fact under a durable power of attorney or as 13
respondent's surrogate to make health care decisions under an advance 14
directive. 15
(2) The petition shall be accompanied by a verified application of the person or entity 16
desiring appointment as limited guardian, guardian, limited conservator, or 17
conservator. The application shall state the name, address, and qualifications of the 18
applicant and his relationship to the respondent. If it is proposed that a standby 19
limited guardian, guardian, limited conservator, or conservator be designated, the 20
petition shall also be accompanied by the application of the person or entity desiring 21
to be so designated. Additional petitions may be filed prior to the date of the hearing 22
by other persons desiring appointment. 23
Section 2. KRS 387.580 is amended to read as follows: 24
(1) At a hearing convened under KRS 387.500 to 387.770 for a determination of partial 25
disability or disability, the court, or the jury if one is impaneled, shall: 26
(a) Inquire into the nature and extent of the general intellectual functioning of the 27 UNOFFICIAL COPY 22 RS BR 850
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respondent; 1
(b) Inquire into the respondent's capacity to make informed decisions concerning 2
his personal affairs and financial resources; 3
(c) Determine whether the respondent is disabled, partially disabled, or has no 4
disability in relation to the management of his financial resources; and 5
(d) Determine whether the respondent is disabled, partially disabled, or has no 6
disability in relation to the management of his personal affairs. 7
(2) If the respondent is found not to be disabled or partially disabled, the petition shall 8
be dismissed. 9
(3) If the respondent is found to be disabled or partially disabled, the court shall, at the 10
same hearing, without a jury, determine: 11
(a) The type of guardian, conservator, or guardian and conservator to be 12
appointed; 13
(b) The specific legal disabilities to which the respondent is subject, if the 14
respondent has been determined to be partially disabled; although the right to 15
contact and retain legal counsel shall not be restricted; 16
(c) Whether the respondent retains the right to vote; 17
(d) The corresponding powers and duties of the limited guardian or limited 18
conservator, if the respondent has been determined to be partially disabled; 19
(e) The individual or entity to be appointed by the court as limited guardian, 20
guardian, limited conservator, or conservator; 21
(f) The individual or entity, if any, to be appointed as standby guardian or 22
conservator; and 23
(g) The duration of the term of guardianship or conservatorship. 24
(4) If the respondent is found to be disabled or partially disabled, the court shall, at 25
the same hearing: 26
(a) Make a finding on the record and inform the guardian or conservator of 27 UNOFFICIAL COPY 22 RS BR 850
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any pending civil or criminal action involving the respondent, and whether 1
any custodial order is in effect regarding the respondent; and 2
(b) Inform the respondent of the right to petition the court to modify or 3
terminate the guardianship or conservatorship, pursuant to Section 5 of this 4
Act. If the respondent is not present at the hearing, the appointed guardian 5
or conservator for the respondent shall convey this information to the 6
respondent in writing. 7
(5) Unless the order of guardianship or conservatorship establishes otherwise: 8
(a) Court-appointed counsel shall represent the respondent through the end of 9
the period in which to perfect an appeal, or upon the resolution of the 10
appeal or action; and 11
(b) Counsel retained by the respondent shall be subject to the previous terms of 12
the representation. 13
Section 3. KRS 387.600 is amended to read as follows: 14
(1) The court may appoint as limited guardian, guardian, limited conservator, or 15
conservator any suitable person or any entity, public or private, capable of 16
conducting an active guardianship or conservatorship program. The court shall not 17
ordinarily or customarily appoint the Cabinet for Health and Family Services or any 18
other person or entity, public or private, that is directly providing services to the 19
respondent unless no other suitable person or entity is available and willing to be 20
appointed. Appointment of the Cabinet for Health and Family Services shall be 21
consistent with the provisions of KRS 210.290. 22
(2) Prior to the appointment, the court shall make a reasonable effort to question the 23
respondent concerning his preference regarding the person or entity to be appointed 24
limited guardian, guardian, limited conservator, or conservator, and any preference 25
indicated shall be given due consideration. If the respondent has designated another 26
as his attorney in fact or agent by executing a power of attorney in writing, that 27 UNOFFICIAL COPY 22 RS BR 850
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designation may[shall] be treated as an indication of the respondent's preference as 1
to the person or entity to be appointed as his limited guardian, guardian, limited 2
conservator, or conservator, and that preference shall be given due consideration. 3
The court shall appoint the person or entity best qualified and willing to serve. 4
Section 4. KRS 387.610 is amended to read as follows: 5
Prior to the expiration of a term of guardianship or conservatorship, the limited guardian, 6
guardian, limited conservator, or conservator may petition, pursuant to KRS 387.620, for 7
a renewal of his appointment for a period not to exceed three (3)[five (5)] years. The 8
petition shall be accompanied by verified affidavits of a physician, an advanced practice 9
registered nurse or physician assistant working within his or her scope of practice, or a 10
psychologist licensed or certified under the provisions of KRS Chapter 319, or a person 11
licensed or certified as a social worker or an employee of the Cabinet for Health and 12
Family Services who meets the qualifications of KRS 335.080(1)(a), (b), and (c) or 13
335.090(1)(a), (b), and (c), supporting the need for the continuation of the guardianship or 14
conservatorship. 15
Section 5. KRS 387.620 is amended to read as follows: 16
(1) A partially disabled or disabled person, his limited guardian, guardian, limited 17
conservator, or conservator, or any other interested person may petition the court 18
for: 19
(a) Termination or modification of an order of partial disability or disability; 20
(b) Removal and/or replacement of a limited guardian, guardian, limited 21
conservator or conservator; or 22
(c) Renewal of the appointment of a limited guardian, guardian, limited 23
conservator, or conservator. 24
(2) Petitions pursuant to this section shall set forth: 25
(a) The name and address of the ward; 26
(b) The name and address of the limited guardian, guardian, limited conservator, 27 UNOFFICIAL COPY 22 RS BR 850
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or conservator; 1
(c) The name, address, and interest of the petitioner; 2
(d) The names and addresses of the ward's next of kin, including but not limited 3
to a: 4
1. Spouse; 5
2. Relative of half-blood; 6
3. First cousin; 7
4. Aunt; 8
5. Uncle; 9
6. Nephew; 10
7. Niece; 11
8. Person of a preceding generation as denoted by prefixes of grand, 12
great, or great-great; 13
9. Stepparent; 14
10. Stepsibling; or 15
11. Fictive kin, if known; 16
(e) The names and addresses of any parents, stepparents, or adoptive parents, if 17
known; 18
(f)[(e)] The name and address of the individual or facility, if any, having 19
custody of the ward; 20
(g)[(f)] The relief requested; and 21
(h)[(g)] The facts and reasons supporting the request. 22
(3) A request under subsection (1) of this section, if made by the ward, may be 23
communicated to the court by any means, including, but not limited to, oral 24
communication or informal letter. Any attorney or employee of the court who 25
receives an informal request under subsection (1) of this section shall transmit 26
the request to the Circuit Court clerk for the county in which the request was 27 UNOFFICIAL COPY 22 RS BR 850
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received. If such a request is communicated by means other than a petition, the 1
court shall appoint a suitable person who may, but need not be, an employee of the 2
state, county, or court to prepare a written petition to be filed with the court within 3
seven (7) days following the appointment. 4
(4) Within thirty (30) days after the filing of a petition, the court shall conduct a hearing 5
at which the ward shall be entitled to counsel. The time for a hearing may be 6
extended by the court, on motion of either party, for cause. Notice of the time and 7
place of the hearing shall be given by the clerk of the court not less than fourteen 8
(14) days prior to the hearing to both parties and all persons named in the petition. 9
The petitioner shall, upon his motion, be entitled to have the motion for termination 10
or modification determined by a jury. 11
(5) At the request of any party or on its own initiative, the court may order an 12
interdisciplinary evaluation of the ward. The time period in which the court must 13
review a petition may be extended for an appropriate period of time if an evaluation 14
is ordered by the court. The interdisciplinary evaluation report may be filed as a 15
single or joint report of the interdisciplinary evaluation team, or it may otherwise be 16
constituted by the separate reports filed by each individual of the team. If the court 17
and all parties to the proceeding and their attorneys agree to the admissibility of the 18
report or reports, the report or reports shall be admitted into evidence and shall be 19
considered by the court. 20
(6) The hearing shall be a jury trial, unless: 21
(a) The respondent if present, counsel for the respondent, and the attorney for 22
the Commonwealth agree to a bench trial; 23
(b) No objection to a bench trial is made by an interested person or entity; and 24
(c) The interdisciplinary evaluation report prepared for the proceeding reflects 25
a unanimous consensus of the persons preparing it that the respondent is 26
disabled or partially disabled, the court has reviewed the report, and the 27 UNOFFICIAL COPY 22 RS BR 850
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court finds no cause to require a jury trial. 1
(7) Upon conclusion of a modification hearing[ without a jury], the court shall enter a 2
written order setting forth the factual basis for its finding and may do any of the 3
following: 4
(a) Dismiss the petition; 5
(b) Remove the guardian or conservator and dissolve the guardianship or 6
conservatorship order; 7
(c) Remove the limited guardian, guardian, limited conservator, or conservator 8
and appoint a successor; 9
(d) Modify the original guardianship or conservatorship order; or 10
(e) Make any other order which the court deems appropriate and in the best 11
interest of the ward, including but not limited to establishing a visitation 12
arrangement with any person, and limiting the ward's ability to enter into a 13
contract. 14
(8)[(7)] If the original order is dissolved and no further order is issued, the ward shall 15
be relieved of all legal disabilities. The court shall enter an order and judgment 16
restoring to the person all of the rights and privileges of a citizen. The clerk shall 17
note the judgment or modification in the book in which notices of actions and 18
encumbrances are indexed. 19
(9)[(8)] The clerk of the court shall transmit a certified copy of the restoration 20
judgment or modification to the originating court, if the judgment or modification is 21
ordered by a court other than the court in which the original judgment was entered. 22
Section 6. KRS 387.640 is amended to read as follows: 23
It shall be the general duty of the limited guardian or guardian to carry out diligently and 24
in good faith the specific duties and powers assigned by the court and to: 25
(1) Assure that the personal, civil, and human rights of the ward are protected; and 26
(2) Encourage the ward to: 27 UNOFFICIAL COPY 22 RS BR 850
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(a) Participate to the maximum extent of his or her abilities in all decisions which 1
affect him or her; 2
(b) Act in his or her own behalf on all matters in which he or she is able to do so; 3
and 4
(c) Develop or regain, to the maximum extent possible, his or her capacity to 5
meet the essential requirements for his physical health or safety, and, if 6
impaired, his capacity to manage his or her financial resources; and[.] 7
(3) If the guardian or limited guardian is the Cabinet for Health and Family 8
Services: 9
(a) Facilitate and encourage the ward's connection to his or her family 10
members, unless: 11
1. There has been a previous finding of neglect or abuse by the family 12
member against the ward; or 13
2. The ward objects to having contact with the family; 14
(b) Provide information to the ward's family about how they can be considered 15
for appointment as the guardian or limited guardian, if information is 16
requested; and 17
(c) Provide the family of the ward with guidance, including but not limited to a 18
case plan, for changes necessary for the cabinet to consider the family 19
member for visitation with, or as a placement for, the ward. 20
Section 7. KRS 387.660 is amended to read as follows: 21
A guardian of a disabled person shall have the following powers and duties, except as 22
modified by order of the court: 23
(1) To establish the ward's place of abode within the state, except that, if at any time a 24
guardian places a ward in a licensed residential facility for developmentally disabled 25
persons, the guardian shall, within thirty (30) days of such placement, file with the 26
court notice of the placement, stating with specificity the reasons for such 27 UNOFFICIAL COPY 22 RS BR 850
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placement, and an interdisciplinary evaluation report detailing the social, 1
psychological, medical or other considerations on which such placement is 2
predicated, a description of the treatment or habilitation programs which will 3
benefit the ward as a result of such placement, and a determination that such 4
placement will provide appropriate treatment in the least restrictive available 5
treatment and residential program. For purposes of this subsection, the 6
interdisciplinary evaluation report may be one performed within two (2) months 7
prior to the placement for purposes of determining whether such placement is 8
necessary and appropriate, or may be an evaluation and assessment provided by the 9
residential facility immediately after placement. Notice to the court shall not be 10
required where the ward is transferred from one licensed residential facility to 11
another; 12
(2) To make provision for the ward's care, comfort, and maintenance and arrange for 13
such educational, social, vocational, and rehabilitation services as are appropriate 14
and as will assist the ward in the development of maximum self-reliance and 15
independence; 16
(3) To give any necessary consent or approval to enable the ward to receive medical or 17
other professional care, counsel, treatment or service, except that a guardian may 18
not consent on behalf of a ward to an abortion, sterilization, psychosurgery, removal 19
of a bodily organ, or amputation of a limb unless the procedure is first approved by 20
order of the court or is necessary, in an emergency situation, to preserve the life or 21
prevent serious impairment of the physical health of the ward; 22
(4) To act with respect to the ward in a manner which limits the deprivation of civil 23
rights and restricts his personal freedom only to the extent necessary to provide 24
needed care and services to him;[ and] 25
(5) To expend sums from the financial resources of the ward reasonable and necessary 26
to carry out the powers and duties assigned to him by the court; and[.] 27 UNOFFICIAL COPY 22 RS BR 850
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(6) If the guardian or limited guardian is the Cabinet for Health and Family 1
Services, to: 2
(a) Facilitate and encourage the ward's connection to his or her family 3
members, unless: 4
1. There has been a previous finding of neglect or abuse by the family 5
member against the ward; or 6
2. The ward objects to having contact with the family; 7
(b) Provide information to the ward's family about how they can be considered 8
for appointment as the guardian or limited guardian, if information is 9
requested; and 10
(c) Provide the family of the ward with guidance, including but not limited to a 11
case plan, for changes necessary for the cabinet to consider the family 12
member for visitation with, or as a placement for, the ward. 13
If a separate limited conservator or conservator has been appointed for the ward, the 14
expenditure of funds by the limited guardian shall be consistent with the duties assigned 15
to and procedures and policies established by such limited conservator or conservator. 16
Conflicts arising between a limited guardian and a limited conservator or conservator 17
regarding the expenditure of funds which are unable to be otherwise resolved shall be 18
submitted to the court for resolution. 19
SECTION 8. A NEW SECTION OF KRS CHAPTER 387 IS CREATED TO 20
READ AS FOLLOWS: 21
Prior to a hearing pursuant to Section 2 of this Act, the attorney for the respondent 22
shall: 23
(1) Determine whether any civil or criminal action is pending against the 24
respondent, and whether any custodial order is in effect regarding the 25
respondent; and 26
(2) Inform the respondent of his or her right to petition the court for modification, 27 UNOFFICIAL COPY 22 RS BR 850
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including but not limited to changes in living arrangements, visitation, or the 1
ability to date or marry, or termination of an order of guardianship or 2
custodianship, if one is issued. 3