Request By:
Mr. Robert W. Riley
Acting General Counsel
Department for Human Resources
209 St. Clair Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to the meaning of the word "guardian" as it appears in KRS 194.060(1)(a) which reads as follows:
"(1) The secretary shall develop and adopt regulations and rules which protect the confidential nature of all records and reports of the department which directly or indirectly identify a client or patient or former client or patient of the department for human resources and which insure that these records are not disclosed to or by any person except as, and insofar as:
"(a) The person identified or his guardian, if any, shall give his consent;. . ."
You ask specifically if the word "guardian" includes the child's parents, court appointed guardian and/or relatives or friends who have been entrusted with the mere custody of the child in the absence of a guardianship order. We believe that it applies to all of the three above.
The parents of a child are considered in law as the natural guardians. 39 C.J.C. Guardian and Ward, § 6. This rule derives from the common law. Statutory or court appointed guardians may be of two kinds - either of the person or of the property of the child. A court appointed guardian of the person of the child should certainly be considered as included in subject statute.
A person who has custody of a child without an appointment by a court is a voluntary or de facto guardian. 39 C.J.S. Guardian and Ward, § 5. Although a de facto guardian does not have control of the property of child, we think that his interest is sufficient that he should be included under the statute pertaining to confidentiality of records.
We would point out that the child himself would not be capable of giving consent to disclosure of his records unless he has attained his majority, that is, his eighteenth birthday.