Right to counsel – For removal and replacement of guardian

Generally

Non-emergency entry and services require consent, absent search warrant

A representative of the Cabinet for Health and Family Services (“cabinet”) may only enter private premises to investigate an allegation of adult abuse, neglect, or exploitation with the consent of the adult or their caretaker.  If entry is refused, “a search warrant may be issued upon a showing of probable cause…” Ky. Rev. Stat. Ann. § 209.030(8). 

As to the provision of services, consent is also required, as the statute states, “If a determination has been made that protective services are necessary when indicated by the investigation, the cabinet shall provide such services within budgetary limitations, except in such cases where an adult chooses to refuse such services.” Id. at (9) (emphasis added).

If an emergency petition is filed, there is a right to a guardian ad litem, but it is not clear whether the GAL must be an attorney.

If there is an emergency for which protective services are required but the adult lacks the capacity to consent and refuses to consent (and no one else is both authorized and willing to consent on their behalf), the cabinet can seek to provide services on an emergency basis through the filing of a petition for emergency protective services. Ky. Rev. Stat. Ann. § 209.100(1). 

Upon the filing of the petition, “the court or the clerk shall immediately appoint a guardian ad litem to represent the interest of the adult.” Ky. Rev. Stat. Ann. § 209.110(2).  The GAL’s responsibilities include “personally interviewing the adult, counseling with the adult with respect to this chapter, informing him of his rights and providing competent representation at all proceedings, and such other duties as the court may order.” Id.  However, it is not clear whether the GAL must be an attorney, because the Protection of Adults chapter does not define “guardian ad litem,” see Ky. Rev. Stat. Ann. § 209.020, nor do the administrative regulations covering the proceedings, see 922 Ky. Admin. Regs. 5:070.

If the removal and appointment of a new guardian is sought, the adult likely has a right to counsel.

At the emergency hearing, if the court discovers that the adult is in need of services, that the adult has a guardian, and that their guardian “has been derelict in providing for [their welfare]”, the court may remove the guardian and appoint another guardian. Ky. Rev. Stat. Ann. § 209.120(3).  The provision specifies that “such removal and appointment shall be in compliance with the provisions of KRS Chapter 387”, which is the chapter governing guardianship and conservatorship matters.  Because unrepresented adult respondents are entitled to appointed counsel in guardianship matters under Ky. Rev. Stat. Ann. § 387.560(1), the right to counsel would presumably attach. 

No right to counsel for appeal

Though 922 Ky. Admin. Regs. 5:070, Section 14, provides for the right to an appeal (“A victim of adult abuse, neglect, or exploitation may request a service appeal in accordance with 922 KAR 1:320, Section 2”), there is no mention of the appointment of a guardian ad litem or counsel for purposes of an appeal.