Request By:
James D. Ishmael, Jr., Esquire
Brown, Sledd & McCann, P.S.C.
300-308 W. Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
In a letter to this office, you inquired as to the proper venue for a competency proceeding filed under KRS Chapter 203 when the allegedly incompetent person was domiciled in Fayette County, Kentucky but is presently located at a nursing home in Jessamine County, Kentucky.
KRS 203.012 provides in part:
"(1) Any reputable resident of the county having knowledge of a person in the county not serving a sentence in the penitentiary or reformatory, who appears to be incompetent to manage his estate may file a petition with the circuit clerk for a determination of the incompetency of such person setting forth facts verified by affidavit. The affidavit may be upon information and belief.
"(2) All petitions filed requesting adjudication of incompetency must include the following information:
"(a) The name and residence of the person concerning whom the petition is filed; . . ."
KRS 203.012 is, in truth, a special venue statute applying to competency proceedings. KRS 203.012(1) indicates that the person alleged to be incompetent must be present in the county wherein the petition is filed. KRS 203.012(2)(a) states that the name and residence of the allegedly mentally incompetent person must be given. It is reasonable to conclude that the legislature in adopting this statute contemplated that the incompetency proceeding might be brought in a county in which the allegedly mentally incompetent person was not necessarily residing.
It is our opinion that the proper venue for a mental inquest is the county wherein the allegedly mentally incompetent person is located at the time of filing the petition. Location is the important question - not residency or domicile. In the particular situation you described, as long as the allegedly mentally incompetent person is located in Jessamine County, the petition must be filed there.
You also inquired whether the petitioner had to be an actual resident of Jessamine County. It is our opinion after reading KRS 203.012(1) that the petitioner must be an actual resident of the county in which the petition is filed. In this case, he must be an actual resident of Jessamine County.
In summary, as long as the elderly lady who is allegedly mentally incompetent remains in Jessamine County, the petition must be filed in that county and furthermore, the petitioner must be a resident of said county. However, this is not to say that the lady in question cannot be transported to Fayette County, the county wherein she was domiciled, for so much time as is necessary to file the petition. In this case, the person filing the petition may be a resident of Fayette County.