Request By:
Ms. Rosemary F. Center
Wolfe County Attorney
Courthouse
Campton, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your request for the opinion of this office relates to the filing of a petition for determination of disability pursuant to KRS 387.500. Your letter reads in part:
"My question is whether it is the duty of the County Attorney to file the petition on benalf of the Petitioner and then proceed to represent the Petitioner. I direct your attention to KRS 387.560(3) which states:
"'. . . 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. '
"The statute on its face appears to place the County Attorney in a conflict situation should the Respondent contest the action.
"Should the County Attorney ask the Petitioner to seek private counsel to represent the Petitioner to prevent a possible conflict?"
Under KRS 387.530(1), a petition for determination of partial disability or disability and the appointment of a limited guardian, guardian, etc., may be filed by any interested person or by an individual needing guardianship or conservatorship. An "interested person" means an adult relative or friend of the respondent or ward, an official or representative of a public or private agency, corporation, or association concerned with that person's welfare, or any other person found suitable by the court. KRS 387.510(12).
At this point, we find no statute imposing upon the county attorney a positive duty to file the petition for determination of partial disability or disability. The imposing of such duty would require a clear, positive, affirmative statute. We can find no such statute.
Pursuant to KRS 387.560(1), unless an appearance has been entered on behalf of the respondent, the district judge is required to appoint counsel for the respondent within one week of the filing of such petition.
KRS 387.560(3) reads:
"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. "
In view of the latter statutory subsection, once the petition has been filed, the county attorney has the specific duties of assisting the petitioner, representing the interest of the Commonwealth, and assisting the court in its inquiry by the presentation of evidence.
The central role of the county attorney in such proceedings is the representation of the Commonwealth. For example, KRS 387.570(5) provides that the burden of proof shall be on the Commonwealth to prove the disability or partial disability of the respondent by clear and convincing evidence. In addition, the court is required to appoint counsel (not county attorney) for the respondent unless already represented by private counsel. See KRS 387.560(1).
The purpose of the guardianship hearing is to afford the court an evidentiary basis for determining with some reasonable degree of precision the degree of disability of the respondent. KRS 387.500 highlights the purpose of this legislation:
"(1) It is the intent and purpose of the General Assembly to recognize that disabled persons have varying degrees of disability.
"(2) Persons who are only partially disabled must be legally protected without a determination of total incompetency and without the attendant deprivation of civil and legal rights that such a determination requires.
"(3) To this end, guardianship and conservatorship for disabled persons shall be utilized only as is necessary to promote their well-being, including protection from neglect, exploitation, and abuse; shall be designed to encourage the development of maximum self-reliance and independence in each person; and shall be ordered only to the extent necessitated by each person's actual mental and adaptive limitations.
"(4) If the court determines that some form of guardianship or conservatorship is necessary, partial guardianship or partial conservatorship shall be the preferred form of protection and assistance for a disabled person."
In enacting KRS 387.560(3), the General Assembly carefully described the general duties of the county attorney: to assist the petitioner, represent the Commonwealth, and assist the court, etc. (Emphasis added). Thus the central role of the county attorney is to respresent the Commonwealth. Should the interest of the Commonwealth conflict with the interest of the petitioner at some stage of the proceedings, it is our view that the county attorney must pursue it from the interest of the Commonwealth. KRS 387.570(5). In addition, as we have said, unless an appearance has been entered on behalf of the respondent, the court must appoint counsel for the respondent within one (1) week of the filing of the petition. Since the civil and legal rights of respondent are potentially at stake, we believe the court should appoint counsel for respondent (not the county attorney) , unless the respondent is already represented by private counsel, prior to the beginning of such proceedings.
In this total context, i.e., under KRS 387.500 to 387.770, your assisting the petitioner in some way where possible (and when not in conflict with your representation of the Commonwealth) is merely required as an adjunct to the representation furnished by the petitioner's counsel. The legislature was emphasizing the delicate nature and importance of the plight of a person under disability. See