Request By:
Emby A. McKeehan, Esq.
Whitley County Attorney
Courthouse
Williamsburg, Kentucky 40769
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning KRS Chapter 387.560, a section of the provisions dealing with Guardianship and Conservatorship for Disabled Persons (KRS 387.500 to 387.770).
You ask whether it is the duty of the county attorney to represent all petitioners in an action under KRS Chapter 387 and, if so, how may the county attorney ethically represent two conflicting petitions for appointment of a guardian over the same individual.
Since you have specifically mentioned KRS 387.560 we presume you are concerned with KRS 387.500 to 387.770 pertaining to Guardianship and Conservatorship for Disabled Persons. KRS 387.560(3) does provide that, "In all proceedings under KRS 387.500 to 387.770, it shall be the duty of the county attorney to assist the petitioner, to represent the interest of the Commonwealth, and to assist the court in its inquiry by the presentation of evidence."
KRS 387.530 deals with the filing of a petition for a determination of partial disability or disability and the appointment of a limited guardian, guardian, limited conservator, or conservator by any interested person or by an individual needing guardianship or conservatorship. The petition, among other things, must be accompanied by a verified application of the person or entity desiring appointment as limited guardian, guardian, limited conservator or conservator. KRS 387.530 further provides that additional petitions may be filed prior to the date of the hearing by other persons desiring appointment.
According to KRS 387.560(3), it is the responsibility of the county attorney to "assist the petitioner" as well as to represent the interest of the Commonwealth and to assist the court in its inquiry. In our view, the statute does not require the county attorney to represent any petitioner within the connotation of an adversary proceeding, but merely requires the county attorney to assist the petitioner in the preparation and filing of the petition.
It is further noted, pursuant to KRS 387.600, that it is the responsibility of the court to appoint the limited guardian, guardian, limited conservator, or conservator based upon certain criteria outlined in the statute. KRS 387.600 states the court may appoint as limited guardian, guardian, limited conservator or conservator any suitable person or entity, public or private, capable of conducting an active guardianship or conservatorship program. The statute also states that prior to the appointment, the court shall make a reasonable effort to question the respondent concerning his preference regarding the person or entity to be appointed and any preference indicated shall be given due consideration. In addition, KRS 387.600 requires the court to appoint the person or entity best qualified and willing to serve.
It is concluded that based upon the provisions of KRS 387.560(3) and KRS 387.600 it is not the responsibility of the county attorney to advocate on behalf of the appointment of any person who has applied for appointment as guardian or conservator.