Request By:
Mr. Ryan Halloran
General Counsel
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you request clarification of OAG 83-419, copy attached, vis-a-vis the county attorney's responsibilities in a case involving guardianship and conservatorship for disabled persons.
In OAG 83-419 we opined that 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 of a disabled person.
You have stated that some county attorneys are interpreting this opinion to mean that they are not to be involved in the disability portion of the proceedings prior to the determination of the appointment of someone to be guardian.
KRS 387.500 to 387.770 pertains to guardianship and conservatorship for disabled persons. KRS 387.560(3) states: "In all proceeding 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 387.507(5) states that at a hearing to determine the disability of a respondent: "The burden of proof shall be on the Commonwelath to prove the disability of partial disability of the respondent by clear and convincing evidence." In OAG 83-474, copy attached, we opined that the central role of the county attorney in these matters was to represent the Commonwealth.
Following a finding of disability or partial disability some type of gardian will be appointed by the court. See, KRS 387.590 to 387.605. OAG 83-419 was concerned with the county attorney's role in this state of the proceedings. However, prior to this point, and during the disability determination hearing, it is our opinion that the county attorney must actively pursue the matter on behalf of the Commonwealth.