Right to counsel

Generally

Counsel must be appointed for unrepresented respondents in both temporary and permanent guardianship / conservatorship establishment matters, whether full or partial disability is sought.  It is not clear whether the right to counsel extends to termination and modification proceedings.  In addition, there is a specific section of the code that governs guardianships of certain veterans that does not mention a right to counsel.  Accordingly, the right to counsel is classified as “qualified.”

Guardianship and conservatorship

Plenary establishment

In guardianship and conservatorship establishment proceedings,

(1) Unless an appearance has been entered on behalf of the respondent, the court shall appoint counsel for the respondent within one (1) week of the filing of a petition for determination of disability under KRS 387.500 to 387.770.

(2) Appointed counsel shall be entitled to compensation for services. If counsel is appointed for a poor person as defined in KRS 453.190, the court shall prescribe reasonable compensation to be paid by the county in which the proceeding is held in accordance with the complexity of the issues, the time involved, and other relevant considerations, except that appointed counsel shall not be compensated at a rate higher than sixty dollars ($60) an hour for time spent in court and no higher than forty dollars ($40) an hour for time spent out of court. If the petition is found to be frivolous or not brought in good faith, counsel fees shall be charged to the petitioner.

Ky. Rev. Stat. Ann. § 387.560(1).  

Temporary or emergency establishment

The right to counsel also applies in matters related to establishing a temporary guardianship or conservatorship on an emergency basis.  Ky. Rev. Stat. Ann. § 387.740(3)(a) states:

The court shall review any and all petitions for an emergency appointment of a limited guardian or limited conservator without delay and not more than one (1) week after the petition is filed. … Within one (1) week of the filing of a petition pursuant to this section, the court shall conduct a hearing at which the respondent shall be entitled to counsel.

Termination and modification matters

In matters related to “[t]ermination or modification of an order of partial disability or disability”, as well as in petitions for “[r]emoval and/or replacement” and for “renewal of the appointment of a limited guardian, guardian, limited conservator, or conservator”, the statute mentions an entitlement to counsel, but it does not specifically mention appointment of counsel, so it is unclear whether there is a right to appointed counsel. See Ky. Rev. Stat. Ann. § 387.620(4) (stating that “Within thirty (30) days after the filing of a petition, the court shall conduct a hearing at which the ward shall be entitled to counsel”, but not mentioning appointment of counsel).

Guardianship of certain veterans

Kentucky has separate guardianship proceedings for “mentally disabled beneficiar[ies] of the Veterans Affairs” such that a person can become eligible for payment of benefits from the VA, but there is no mention of providing counsel for such proceedings.  See Ky. Rev. Stat. Ann. § 388.190 et seq.