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AN ACT relating to guardians and conservators. 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;[,] 16
(g) The names and addresses of any parents, stepparents, or adoptive parents, if 17
known; 18
(h)[(g)] The name and address of the individual or facility, if any, having 19
custody of the respondent; 20
(i)[(h)] The name, address and interest of the petitioner; 21
(j)[(i)] The name and address of the petitioner's attorney, if any; [and] 22
(k)[(j)] Whether any civil or criminal action is pending against or in relation 23
to the respondent, and whether any custodial order is in effect regarding the 24
respondent, if known; and 25
(l) The name and address of any person or entity appointed by the respondent as 26
respondent's attorney in fact under a durable power of attorney or as 27 UNOFFICIAL COPY 23 RS BR 37
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respondent's surrogate to make health care decisions under an advance 1
directive. 2
(2) The petition shall be accompanied by a verified application of the person or entity 3
desiring appointment as limited guardian, guardian, limited conservator, or 4
conservator. The application shall state the name, address, and qualifications of the 5
applicant and his or her relationship to the respondent. If it is proposed that a 6
standby limited guardian, guardian, limited conservator, or conservator be 7
designated, the petition shall also be accompanied by the application of the person 8
or entity desiring to be so designated. Additional petitions may be filed prior to the 9
date of the hearing by other persons desiring appointment. 10
Section 2. KRS 387.580 is amended to read as follows: 11
(1) At a hearing convened under KRS 387.500 to 387.770 for a determination of partial 12
disability or disability, the court, or the jury if one is impaneled, shall: 13
(a) Inquire into the nature and extent of the general intellectual functioning of the 14
respondent; 15
(b) Inquire into the respondent's capacity to make informed decisions concerning 16
his or her personal affairs and financial resources; 17
(c) Determine whether the respondent is disabled, partially disabled, or has no 18
disability in relation to the management of his or her financial resources; and 19
(d) Determine whether the respondent is disabled, partially disabled, or has no 20
disability in relation to the management of his or her personal affairs. 21
(2) If the respondent is found not to be disabled or partially disabled, the petition shall 22
be dismissed. 23
(3) If the respondent is found to be disabled or partially disabled, the court shall, at the 24
same hearing, without a jury, determine: 25
(a) The type of guardian, conservator, or guardian and conservator to be 26
appointed; 27 UNOFFICIAL COPY 23 RS BR 37
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(b) The specific legal disabilities to which the respondent is subject, if the 1
respondent has been determined to be partially disabled; 2
(c) Whether the respondent retains the right to vote; 3
(d) The corresponding powers and duties of the limited guardian or limited 4
conservator, if the respondent has been determined to be partially disabled; 5
(e) The individual or entity to be appointed by the court as limited guardian, 6
guardian, limited conservator, or conservator; 7
(f) The individual or entity, if any, to be appointed as standby guardian or 8
conservator; and 9
(g) The duration of the term of guardianship or conservatorship. 10
(4) If the respondent is found to be disabled or partially disabled, the court shall, at 11
the same hearing: 12
(a) Make a finding on the record and inform the guardian or conservator of 13
any pending civil or criminal action involving or in relation to the 14
respondent, and whether any custodial order is in effect regarding the 15
respondent; and 16
(b) Inform the respondent of the right to petition the court to modify or 17
terminate the guardianship or conservatorship pursuant to Section 4 of this 18
Act. If the respondent is not present at the hearing, the court shall convey 19
this information to the respondent in writing. 20
(5) Unless the order of guardianship or conservatorship establishes otherwise: 21
(a) Court-appointed counsel shall represent the respondent through the end of 22
the period in which to perfect an appeal or upon the resolution of the appeal 23
or action; and 24
(b) Counsel retained by the respondent shall be subject to the terms of the 25
representation agreement. 26
Section 3. KRS 387.600 is amended to read as follows: 27 UNOFFICIAL COPY 23 RS BR 37
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(1) The court may appoint as limited guardian, guardian, limited conservator, or 1
conservator any suitable person or any entity, public or private, capable of 2
conducting an active guardianship or conservatorship program. The court shall not 3
ordinarily or customarily appoint the Cabinet for Health and Family Services or any 4
other person or entity, public or private, that is directly providing services to the 5
respondent unless no other suitable person or entity is available and willing to be 6
appointed. Appointment of the Cabinet for Health and Family Services shall be 7
consistent with the provisions of KRS 210.290. 8
(2) Prior to the appointment, the court shall make a reasonable effort to question the 9
respondent concerning his or her preference regarding the person or entity to be 10
appointed limited guardian, guardian, limited conservator, or conservator, and any 11
preference indicated shall be given due consideration. If the respondent has 12
designated another as his or her attorney in fact or agent by executing a power of 13
attorney in writing, that designation may[shall] be treated as an indication of the 14
respondent's preference as to the person or entity to be appointed as his or her 15
limited guardian, guardian, limited conservator, or conservator, and that preference 16
shall be given due consideration. The court shall appoint the person or entity best 17
qualified and willing to serve. 18
Section 4. KRS 387.620 is amended to read as follows: 19
(1) A partially disabled or disabled person, his or her limited guardian, guardian, 20
limited conservator, or conservator, or any other interested person may petition the 21
court for: 22
(a) Termination or modification of an order of partial disability or disability; 23
(b) Removal and/or replacement of a limited guardian, guardian, limited 24
conservator or conservator; or 25
(c) Renewal of the appointment of a limited guardian, guardian, limited 26
conservator, or conservator. 27 UNOFFICIAL COPY 23 RS BR 37
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(2) Petitions pursuant to this section shall set forth: 1
(a) The name and address of the ward; 2
(b) The name and address of the limited guardian, guardian, limited conservator, 3
or conservator; 4
(c) The name, address, and interest of the petitioner; 5
(d) The names and addresses of the ward's next of kin;[,] 6
(e) The names and addresses of any parents, stepparents, or adoptive parents, if 7
known; 8
(f)[(e)] The name and address of the individual or facility, if any, having 9
custody of the ward; 10
(g)[(f)] The relief requested; and 11
(h)[(g)] The facts and reasons supporting the request. 12
(3) A request under subsection (1) of this section, if made by the ward, may be 13
communicated to the court by any means, including, but not limited to, oral 14
communication or informal letter. Any attorney licensed in the Commonwealth 15
who receives an informal request under subsection (1) of this section shall 16
transmit the request to the Circuit Court clerk for the county in which the request 17
was received. If such a request is communicated by means other than a petition, the 18
court shall appoint a suitable person who may, but need not be, an employee of the 19
state, county, or court to prepare a written petition to be filed with the court within 20
seven (7) days following the appointment. 21
(4) Within thirty (30) days after the filing of a petition, the court shall conduct a 22
hearing at which the ward shall be entitled to counsel. The time for a hearing may 23
be extended by the court, on motion of either party, for cause. Notice of the time 24
and place of the hearing shall be given by the clerk of the court not less than 25
fourteen (14) days prior to the hearing to both parties and all persons named in the 26
petition. The petitioner shall, upon his or her motion, be entitled to have the motion 27 UNOFFICIAL COPY 23 RS BR 37
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for termination or modification determined by a jury. 1
(5) At the request of any party or on its own initiative, the court may order an 2
interdisciplinary evaluation of the ward. The time period in which the court must 3
review a petition may be extended for an appropriate period of time if an evaluation 4
is ordered by the court. The interdisciplinary evaluation report may be filed as a 5
single or joint report of the interdisciplinary evaluation team, or it may otherwise be 6
constituted by the separate reports filed by each individual of the team. If the court 7
and all parties to the proceeding and their attorneys agree to the admissibility of the 8
report or reports, the report or reports shall be admitted into evidence and shall be 9
considered by the court. 10
(6) The hearing shall be a jury trial, unless: 11
(a) The respondent, counsel for the respondent, and the attorney for the 12
Commonwealth agree to a bench trial; and 13
(b) The interdisciplinary evaluation report prepared for the proceeding reflects 14
a unanimous consensus of the persons preparing it that the respondent is 15
disabled or partially disabled, the court has reviewed the report, and the 16
court finds no cause to require a jury trial. 17
(7) Upon conclusion of a modification hearing[ without a jury], the court shall enter a 18
written order setting forth the factual basis for its finding and may do any of the 19
following: 20
(a) Dismiss the petition; 21
(b) Remove the guardian or conservator and dissolve the guardianship or 22
conservatorship order; 23
(c) Remove the limited guardian, guardian, limited conservator, or conservator 24
and appoint a successor; 25
(d) Modify the original guardianship or conservatorship order; or 26
(e) Make any other order which the court deems appropriate and in the best 27 UNOFFICIAL COPY 23 RS BR 37
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interest of the ward, including but not limited to establishing a visitation 1
arrangement with any person. 2
(8)[(7)] If the original order is dissolved and no further order is issued, the ward shall 3
be relieved of all legal disabilities. The court shall enter an order and judgment 4
restoring to the person all of the rights and privileges of a citizen. The clerk shall 5
note the judgment or modification in the book in which notices of actions and 6
encumbrances are indexed. 7
(9)[(8)] The clerk of the court shall transmit a certified copy of the restoration 8
judgment or modification to the originating court, if the judgment or modification is 9
ordered by a court other than the court in which the original judgment was entered. 10
Section 5. KRS 387.640 is amended to read as follows: 11
It shall be the general duty of the limited guardian or guardian to carry out diligently and 12
in good faith the specific duties and powers assigned by the court and to: 13
(1) Ensure[Assure] that the personal, civil, and human rights of the ward are 14
protected;[ and ] 15
(2) Encourage the ward to: 16
(a) Participate to the maximum extent of his or her abilities in all decisions which 17
affect him or her; 18
(b) Act in his or her own behalf on all matters in which he or she is able to do so; 19
and 20
(c) Develop or regain, to the maximum extent possible, his or her capacity to 21
meet the essential requirements for his or her physical health or safety, and, if 22
impaired, his or her capacity to manage his or her financial resources; and 23
(3) If the guardian or limited guardian is the Cabinet for Health and Family 24
Services: 25
(a) Facilitate and encourage the ward's connection to his or her family 26
members where appropriate; 27 UNOFFICIAL COPY 23 RS BR 37
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(b) Provide information to the ward's family about how they can be considered 1
for appointment as the guardian or limited guardian, if information is 2
requested; and 3
(c) Provide the family of the ward with guidance, including but not limited to a 4
case plan, for changes necessary for the cabinet to consider the family 5
member for visitation with, or as a placement for, the ward. 6
Section 6. KRS 387.660 is amended to read as follows: 7
A guardian of a disabled person shall have the following powers and duties, except as 8
modified by order of the court: 9
(1) To establish the ward's place of abode within the state, except that, if at any time a 10
guardian places a ward in a licensed residential facility for developmentally 11
disabled persons, the guardian shall, within thirty (30) days of such placement, file 12
with the court notice of the placement, stating with specificity the reasons for such 13
placement, and an interdisciplinary evaluation report detailing the social, 14
psychological, medical or other considerations on which such placement is 15
predicated, a description of the treatment or habilitation programs which will 16
benefit the ward as a result of such placement, and a determination that such 17
placement will provide appropriate treatment in the least restrictive available 18
treatment and residential program. For purposes of this subsection, the 19
interdisciplinary evaluation report may be one performed within two (2) months 20
prior to the placement for purposes of determining whether such placement is 21
necessary and appropriate, or may be an evaluation and assessment provided by the 22
residential facility immediately after placement. Notice to the court shall not be 23
required where the ward is transferred from one licensed residential facility to 24
another; 25
(2) To make provision for the ward's care, comfort, and maintenance and arrange for 26
such educational, social, vocational, and rehabilitation services as are appropriate 27 UNOFFICIAL COPY 23 RS BR 37
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and as will assist the ward in the development of maximum self-reliance and 1
independence; 2
(3) To give any necessary consent or approval to enable the ward to receive medical or 3
other professional care, counsel, treatment or service, except that a guardian may 4
not consent on behalf of a ward to an abortion, sterilization, psychosurgery, 5
removal of a bodily organ, or amputation of a limb unless the procedure is first 6
approved by order of the court or is necessary, in an emergency situation, to 7
preserve the life or prevent serious impairment of the physical health of the ward; 8
(4) To act with respect to the ward in a manner which limits the deprivation of civil 9
rights and restricts his or her personal freedom only to the extent necessary to 10
provide needed care and services to him or her;[ and] 11
(5) To expend sums from the financial resources of the ward reasonable and necessary 12
to carry out the powers and duties assigned to him or her by the court; and 13
(6) If the guardian or limited guardian is the Cabinet for Health and Family 14
Services, to: 15
(a) Facilitate and encourage the ward's connection to his or her family 16
members where appropriate; 17
(b) Provide information to the ward's family about how they can be considered 18
for appointment as the guardian or limited guardian, if information is 19
requested; and 20
(c) Provide the family of the ward with guidance, including but not limited to a 21
case plan, for changes necessary for the cabinet to consider the family 22
member for visitation with, or as a placement for, the ward. 23
If a separate limited conservator or conservator has been appointed for the ward, the 24
expenditure of funds by the limited guardian shall be consistent with the duties assigned 25
to and procedures and policies established by such limited conservator or conservator. 26
Conflicts arising between a limited guardian and a limited conservator or conservator 27 UNOFFICIAL COPY 23 RS BR 37
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regarding the expenditure of funds which are unable to be otherwise resolved shall be 1
submitted to the court for resolution. 2
Section 7. This Act may be cited as the Conservatorship Advocacy to Remove 3
Exploitation (C.A.R.E.) Act. 4