Right to attorney guardian ad litem – Incarcerated persons failing to defend

Ky. R. Civ. P. 17.04(1) states:

If for any reason the prisoner fails or is unable to defend an action, the court shall appoint a practicing attorney as guardian ad litem, and no judgment shall be rendered against the prisoner until the guardian ad litem shall have made defense or filed a report stating that after careful examination of the case he or she is unable to make defense.

The Kentucky Court of Appeals, in Davidson v. Boggs, emphasized that this rule means that a guardian ad litem must be appointed if an incarcerated defendant in a civil suit fails to defend the action for any reason, even if the failure is voluntary or the incarcerated person possessed sufficient funds to be able to hire an attorney. 859 S.W.2d 662, 665 (Ky. Ct. App. 1993).  In Goldsmith v. Fifth Third Bank, the Kentucky Court of Appeals clarified its holding in Davidson to acknowledge that an incarcerated individual may waive their right to a guardian ad litem. 297 S.W.3d 898, 903 (Ky. Ct. App. 2009).

However, the right created by this rule is limited, as it applies only to actions brought against a prisoner, not those brought by a prisoner.  See May v. Coleman, 945 S.W.2d 426, 427 (Ky. 1997).  For this reason and because the right is to an attorney guardian ad litem and not to client-directed counsel, the development is classified as “qualified.”