Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
209.020(5),
210.290(3),
(4), 387.500-387.990, Chapter 389A
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
387.600(1) authorizes the
Cabinet for Health and Family Services to be appointed as limited guardian,
guardian, limited conservator, or conservator to conduct an active guardianship
or conservatorship program.
KRS
194A.050(1) requires the
secretary of the cabinet to promulgate administrative regulations necessary
under applicable state laws to protect, develop, and maintain the health,
personal dignity, integrity, and sufficiency of the individual citizens of the
commonwealth. This administrative regulation establishes referral requirements
for adult guardianship.
Section 1.
Definitions.
(1) "Adult" is defined by
KRS
209.020(4).
(2) "Conservator" is defined by
KRS
387.510(1).
(3) "Court" means a court of competent
jurisdiction.
(4) "Disabled" is
defined by
KRS
387.510(8).
(5) "Division" means the Division of
Guardianship.
(6) "Informal network
of support" means:
(a) A family
member;
(b) A friend;
(c) A neighbor in the life of the individual
needing assistance; or
(d) Another
interested person or entity.
(7) "Inquiry" means an individual or entity
requesting information regarding guardianship services.
(8) "Least restrictive alternatives" means an
alternative to guardianship that has been exhausted prior to being eligible for
state appointment, including:
(a) Power of
attorney;
(b) Living
wills;
(c) Advance
directives;
(d) Case
management;
(e) Representative
payee;
(f) Curator;
(g) Trustee;
(h) Health care surrogate;
(i) Ex-parte order;
(j) Emergency protective services;
(k) Adult protective ongoing
services;
(l) Informal network of
support; or
(m) Supported decision
making.
(9) "Limited
conservator" is defined by
KRS
387.510(2).
(10) "Limited guardian" is defined by
KRS
387.510(4).
(11) "Protective services" is defined by
KRS
209.020(5).
(12) "Referral source" means an entity that
makes an inquiry of the Division of Guardianship Services such as:
(a) A member of the general public;
(b) Adult Protective Services;
(c) Child Protective Services;
(d) A family member;
(e) A medical hospital;
(f) A jail;
(g) A psychiatric hospital;
(h) Another interested person or entity;
or
(i) A long-term care
facility.
(13)
"Successor guardian" means an individual, agency, or corporation who is
appointed to succeed a current guardian removed by a court.
(14) "Supported decision making" means a
model for supporting people with disabilities to make significant decisions and
exercise their legal capacity.
(15)
"Ward" is defined by
KRS
387.510(15).
Section 2. Referral Process for
Individuals Who Are Not Adjudicated.
(1) If a
referral source wishes the cabinet to be guardian, conservator, limited
guardian, limited conservator, or any combination thereof, the referral source
shall first contact the division by phone or in writing.
(2) If the referral source wants to proceed
with the referral process the division shall provide, to the referral source,
the GF-01 Guardianship Information Form and a cover letter providing
instructions on how to submit the completed GF-01.
(3) Upon receipt of the completed GF-01 the
division shall review and determine if the referral meets the acceptance
criteria as follows:
(a) The individual being
referred for guardianship is an adult;
(b) Is a legal resident of the Commonwealth,
pursuant to
KRS
210.290(2)(a);
(c) Has no capable informal network of
support;
(d) Has exhausted all
other least restrictive alternatives;
(e) Has no other suitable person or entity
available or able to be the individual's guardian;
(f) Does not have a history of violent or
sexual criminal behavior; and
(g)
Upon accepting the referral, the division shall:
1. Complete the AOC-745; and
2. Return the original AOC-745 to the
referral source for filing with the District Court in the county of
residence.
Section 3. Guardianship Referral for
Individuals Who Have Been Adjudicated Disabled.
(1) Within ten (10) working days of a
referral, the division shall send to the referral source:
(a) A blank AOC-795, Petition for Relief
Modification or Termination, issued by the Administrative Office of the Courts
and available at
https://courts.ky.gov/resources/legalforms/LegalForms/795.pdf.
(b) The GF-01, Guardianship Information Form;
and
(c) A cover letter instructing
the referral source to:
1. Complete the forms
specified in paragraphs (a) and (b) of this subsection, in their entirety;
and
2. Submit the completed forms
to the division. Incomplete forms shall be returned without action.
(2) The referral source
shall complete the forms listed in subsection (1)(a) and (b) of this section
and return the forms to the division.
(3) The division shall review the
documentation from the referral source to complete the application
process.
(4) If the division
accepts the referral, the division shall:
(a)
Complete, sign, and notarize an AOC-745, Application for Appointment for
Fiduciary, issued by the Administrative Office of the Courts, requesting that
the cabinet be appointed to serve as successor guardian, conservator, limited
guardian, limited conservator, or any combination thereof; and
(b) Return the original, signed AOC-745 to
the referral source for filing with the District Court in the county of
residence.
(5) The
division shall return the forms specified in subsections (1)(a), (b), and (4)
of this section with a cover letter instructing the referral source to file the
forms with the court.
(6) If the
division is notified of a hearing by the court, division staff may attend the
hearing to meet the respondent and gather information concerning the
case.
(7) If the court requests,
division staff attending court shall be sworn in as successor guardian,
conservator, limited guardian or limited conservator.
Section 4. Nonacceptance for a Guardianship
Referral. If the referral does not meet the requirements of Section 2 and
Section 3 of this administrative regulation, the division shall notify the
referral source in writing within thirty (30) calendar days of receipt of the
referral. The referral source may consult with the division for explanation and
referral to other services.
Section
5. Incorporation by Reference.
(1) "GF-01, Guardianship Information Form",
edition 09/2018, is incorporated by reference.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Department for Aging
and Independent Living, 275 East Main Street, Frankfort, Kentucky 40621, Monday
through Friday, 8 a.m. to 4:30 p.m.
STATUTORY AUTHORITY:
KRS
387.600(1),
194A.050(1)