Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
17.500 - 17.540, Chapter 202A, Chapter 202B,
209.030. 209.990, 210.290(3), (4), 311.6225, 311.6231, 367.97501, 367.97524,
367.97527, 387.500-387.990, 389A.010, 389.015,
20
C.F.R. 416.212,
42 U.S.C.
1382(e)(1)(G)
NECESSITY, FUNCTION, AND CONFORMITY:
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 service provisions for
adult guardianship.
Section 1.
Definitions.
(1) "Best interest" means a
course of action that maximizes what is best for a ward and that includes
consideration of the least intrusive, most normalizing, and least restrictive
course of action possible given the needs of a ward.
(2) "Comorbid condition" means the presence
of one (1) or more additional disorders or diseases co-occurring with a primary
disease or disorder, or the effect of an additional disorder or
disease.
(3) "Conservator" is
defined by
KRS
387.510(1).
(4) "Court" means a court of competent
jurisdiction.
(5) "DAIL" means the
Department for Aging and Independent Living.
(6) "Division" means the Division of
Guardianship.
(7) "Guardian" is
defined by
KRS
387.510(3).
(8) "Guardian ad Litem" means an attorney
appointed to represent the interests of a person with respect to a single
action in litigation.
(9) "Informed
consent" means a person's agreement to a particular course of action based on a
full disclosure of facts needed to make the decision intelligently.
(10) "Interested party" means interested
parties as defined by
KRS
387.860(5).
(11) "Least restrictive alternative" means an
alternative to guardianship that has been exhausted prior to becoming 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.
(12) "Limited
conservator" is defined by
KRS
387.510(2).
(13) "Limited guardian" is defined by
KRS
387.510(4).
(14) "Nurse consultant" means a nurse
consultant inspector employed by the Cabinet for Health and Family
Services.
(15) "Provider" means a
facility or entity providing services for a ward such as:
(a) Self;
(b) Caretaker;
(c) Relative;
(d) Group home placement;
(e) Hospital;
(f) Psychiatric hospital;
(g) Personal care home; or
(h) Medicaid waivers.
(16) "Quitclaim Deed" means a document by
which an individual disclaims an interest in a piece of real property and
passes that claim to another person.
(17) "Substituted judgment" means a principle
of decision-making made by the division that comports with the individual ward
or beneficiary's known wishes expressed prior to the appointment of a guardian,
if the individual was once capable of developing views relevant to the matter
at issue and reliable evidence of these views remains.
(18) "Successor guardian" means an
individual, agency, or corporation who is appointed to succeed a current
guardian removed by the court.
(19)
"Terminal condition" is defined by
KRS
311.621(17).
(20) "Ward" is defined by
KRS
387.510(15).
Section 2. Annual Court Report.
(1) Within thirty (30) calendar days of the
anniversary date of the guardianship appointment, the division shall submit to
the court an annual report on the ward's personal status.
(2) In order to complete the annual report,
the division shall:
(a) Report the current
physical condition and needs;
(b)
Review the ward's records;
(c)
Consult with the provider concerning the ward's care; and
(d) Verify the names, addresses, and
telephone numbers of the ward's relatives, if known.
(3) The division shall:
(a) Review, sign, and notarize an annual
report; and
(b) Maintain a
scheduling system that ensures the timely filing of annual reports in court for
each guardianship ward.
Section 3. Renewal of Limited Appointments.
(1) A limited guardian or limited conservator
shall not be appointed for more than five (5) years pursuant to
KRS
387.590(4).
(2) The division shall be responsible for
initiating procedures for continued guardianship or conservatorship, if
appropriate.
(3) To make this
determination, the division shall review the last annual court report to
determine if continued guardianship was recommended.
(4) The division shall secure a verified
affidavit from a physician, psychiatrist, or social worker, not serving in the
division, verifying the petition to continue guardianship if required by the
court.
(5) At least sixty (60)
calendar days prior to the date of the expiration of the limited guardianship,
the division shall file with the court the following:
(a) Petition for Relief, Modification or
Termination (AOC-795) issued by the Administrative Office of the Courts and
available at
https://courts.ky.gov/resources/legalforms/LegalForms/795.pdf.
and
(b) A verified affidavit as
specified in subsection (4) of this section, if required.
(6) If the request for modification involves
the removal of additional rights, the division shall request a bench or jury
trial.
(7) If required by the
court, the division shall attend the renewal hearing and testify.
(8) Once a court order is issued, the
division shall obtain a copy of the court documents.
Section 4. Restoration, Modification of
Rights, or Successor Guardian or Conservator.
(1) The division shall inform the ward of the
restoration or modification of rights process.
(2) If a ward requests the restoration of his
or her rights, the division shall assess and assist the ward's
request.
(3) The division shall
assess the ward for the following:
(a)
Community supports available to assist the ward;
(b) Least restrictive alternatives that are
available to the ward;
(c)
Improvements in the ward's ability to manage personal or financial
affairs;
(d) Risks and benefits of
restoration or modification of rights; and
(e) A recommendation of what rights could be
appropriately restored, including voting rights.
(4) If the assessment supports restoration or
modification, the division shall assist the ward in preparation of the Petition
for Relief, Modification or Termination (AOC-795), for submittal to the
court.
(5) If the assessment does
not support restoration or modification, the division shall inform the ward or
other interested party and advise that he or she may call or write the court to
request restoration.
(6) If it is
in the ward's best interest, the division shall work with the ward towards the
goal of restoration or modification by developing a plan and setting attainable
and measurable goals.
(7) The
division shall involve community partners in formulating the plan to ensure
focus on comprehensive services.
(8) The division shall agree on a time frame
for evaluating the ward's progress.
(9) If the ward has some or all rights
restored, a successor is appointed, or the cabinet no longer serves in any
capacity and the cabinet's appointment is modified, the division shall:
(a) Obtain a copy of the new court
order;
(b) Update the Kentucky
Guardianship Fiduciary Information System (KYGFIS) by attaching the appointment
papers to an event; and
(c) Update
the appointment type in KYGFIS if partial restoration of rights were obtained
by the ward.
Section
5. Inappropriate Appointments.
(1) If an individual is appointed to the
state guardianship program in any capacity and does not meet the requirements
of
KRS
210.290, the cabinet shall file an
appeal.
(2) The cabinet shall seek
relief of any powers appointed:
(a) Pursuant
to
KRS
387.740 that exceed six (6) months;
or
(b) If an interdisciplinary
evaluation report indicates the individual does not need a guardian.
Section 6. Sale of Real
Estate and Personal Property.
(1) If a ward
of the cabinet has real property, the DAIL shall explore options for management
of property and determine what is in the best interest of the ward.
(2) Information concerning the property
valuation for tax purposes, the real estate or personal property, or offers to
purchase the ward's property shall only be disclosed for cabinet business
purposes to the following authorized persons:
(a) Other staff employed by the cabinet's
division such as:
1. Office of the Inspector
General (OIG);
2. Office of Legal
Services (OLS);
3.
Ombudsman;
4. Adult Protective
Services (APS); or
5. Child
Protective Services (CPS);
(b) The insurance agent or claims
representative of the insurance company that wrote the insurance policy on the
property;
(c) The real estate agent
or attorney with an agreement to manage property and legal matters for the
service region; or
(d) The Guardian
ad Litem appointed for the sale of the ward's property.
(3) In disposing of the ward's assets, the
DAIL shall make a reasonable effort to preserve the estate as designated in the
ward's will or other estate planning device executed by the ward prior to the
finding of disability in accordance with
KRS
387.700(1).
(4) The DAIL shall review court appointment
papers to ensure that the cabinet has the authority to handle real estate and
personal property matters.
(5) If
necessary, or if mandated by the court, the DAIL shall secure a title search or
an independent appraisal of real and personal property.
(6) The DAIL shall secure an attorney to
handle the sale of property pursuant to
KRS
389A.010 and
389A.015.
(7)
(a) The
DAIL shall ensure the cabinet only passes title by means of a Quitclaim Deed on
behalf of the ward.
(b) A Quitclaim
Deed passes only the interest held by the ward.
(c) Warranties shall not be expressed in a
Quitclaim Deed.
(8) If a
relative or other interested party is interested in purchasing real property,
they may purchase the property at fair market value as appraised by a realtor
or licensed appraiser.
(9) If the
division determines it is in the ward's best interest to sell real and personal
property, a public forum for sale shall include a:
(a) Public auction;
(b) Dealer consignment;
(c) Yard sale; or
(d) Realtor.
(10) The DAIL shall dispose of remaining
items that did not sell, if applicable, through donation.
(11) The DAIL may seek eviction through the
court if a person residing in the ward's property:
(a) Refuses to vacate the property;
(b) Is not paying rent; or
(c) Is causing damage to the
property.
(12) The DAIL
shall attend a closing on the ward's real property and shall sign documents
such as a:
(a) Quitclaim Deed;
(b) Settlement Statement; or
(c) Tax form.
Section 7. Guardianship Ongoing Service
Provision.
(1) The division:
(a) Shall have someone on call twenty-four
(24) hours a day; and
(b) May have
duties such as:
1. Managing assets, which may
include managing or liquidating real and personal property;
2. Providing consent for social services,
medical services, and other needed support services necessary for the
well-being of the ward; or
3.
Providing consent or denial for temporary or permanent living arrangements
recommended and found by the case manager, family, service provider, discharge
planner, or other interested person involved with the ward.
(2) Pursuant to
KRS
387.640(1), the cabinet as
guardian shall have the general duty to assure that the personal, civil, and
human rights of the ward are preserved and protected.
(3) The division shall not:
(a) Assume physical custody of the
ward;
(b) Become the caregiver or
custodian of the ward;
(c) Be
personally liable for the ward's expenses, placement, or actions; or
(d) Provide transportation of the ward in a
state or personal vehicle, but may assist in arranging transportation through a
third party willing to transport if the ward has funds available to cover the
cost.
Section
8. Decision Making on Behalf of a Ward.
(1) A decision made on behalf of a ward by
the division shall be based on the principles of:
(a) Informed consent;
(b) Substituted judgment;
(c) Best interest; or
(d) Least restrictive alternative.
(2) The division shall use the
following guidelines if making a decision on behalf of a ward:
(a) The exact request of the ward;
(b) Conditions identified necessitating
action;
(c) Identify and determine
alternatives that best meets the individual needs of the ward while placing the
least restrictions on the ward's:
1.
Freedom;
2. Rights; and
3. Ability to control the ward's own
environment;
(d) Based
on available information, determine whether the ward has previously stated
preferences prior to the cabinet being made the ward's guardian;
(e) Communication of decisions with the
ward;
(f) A determination of risks
and benefits:
1. While balancing the ward's
maximum self-determination; and
2.
Maintaining the safety of the ward; and
(g) Directions from the court.
(3) The division shall make each
decision based on the principle of informed consent.
(4) The division shall not use substituted
judgment if:
(a) Following the ward's wishes
causes substantial harm to the ward; or
(b) The division is unable to establish the
ward's prior wishes.
(5)
The division shall consider the least intrusive, best interest, and least
restrictive alternative course of action possible to provide for the needs of
the ward.
Section 9.
Visiting the Ward.
(1) The division shall
visit the ward in the home environment at least once annually unless the ward
resides in another state that is not within 100 miles of the closest
guardianship field office.
(2) If
the visit identifies a concern, the division shall:
(a) Report known or suspected incidents of
abuse, neglect, or exploitation in accordance with
KRS
209.030;
(b) Report immediately to the appropriate
regulatory or certifying agency; or
(c) If the issue is not related to health,
safety, or welfare, bring it to the attention of the provider's administrator
or designee and develop an agreement for corrective action with the provider's
administrator.
Section
10. Out of State Travel.
(1) If a
request is made for a ward to travel out of the state of Kentucky, the division
using a person-centered approach shall consider the following:
(a) Risk of or prior Absence Without Leave
(AWOL);
(b) Medical issues of the
ward that may require attention while out of state that shall be:
1. Paid through the ward's
insurance;
2. Paid with the ward's
own funds if insurance does not cover the expenses; or
3. Eligible for indigent care if neither
insurance or personal funds are available to cover the medical
expenses;
(c) The ward's
ability to handle the trip; and
(d)
The ward's financial ability to afford the trip.
(2) If a request includes travel out of the
United States, the division shall inform the court of jurisdiction and allow
the court to express any concerns.
(3) The division shall request a signed
memorandum or letter from the provider detailing the following information:
(a) The potential for AWOL risk and if
measures will be taken to lessen the risk;
(b) Acceptance of the involved
responsibilities of the ward; and
(c) Proposed dates of travel.
(4) If the division determines
that the provider has been responsible and agrees travel is in the best
interest of the ward, the division shall share all necessary emergency contact
numbers with the provider and request the provider to:
(a) Make contact upon return home;
and
(b) Carry a copy of the current
court order appointing the cabinet as guardian in case of an
emergency.
Section
11. Signing Documents on Behalf of a Ward or Signing Reports to
Courts.
(1) The division shall review each
provider contract to ensure a ward's rights are preserved.
(2) The division shall not sign a contract
for arbitration on behalf of a ward.
(3) A division employee shall use the term:
(a) "Conservator" or "limited conservator" if
the cabinet has been appointed for the sole purpose of performing the duties of
a full or limited conservatorship; or
(b) "Guardian" or "limited guardian" in all
other designations or combinations thereof.
Section 12. Placement and Movement of Wards.
(1) To ensure a ward is receiving the least
restrictive and highest quality services from the most appropriate provider,
the division shall develop and maintain a working knowledge of:
(a) Services;
(b) Providers; and
(c) Facilities in the community.
(2) The division shall consider
various ancillary and support services and approve a provider that best meets
the needs of the individual ward, with consideration given to the ward's
preference.
(3) If the cabinet has
been appointed to facilitate and approve living arrangements of the ward, the
division shall provide consent for the most appropriate, least restrictive
environment taking into consideration the ward's financial abilities, wishes,
and needs.
(4) Consent to move to a
new environment, including an intermediate care facility for individuals with
intellectual disabilities, nursing facility, or psychiatric hospital, may only
be made after the division:
(a) Evaluates
physical and mental health needs by reviewing recommendations of treating
professionals;
(b) Receives
acceptance from the placement as meeting the level of care; and
(c) Determines care options.
(5) The division shall, upon the
move to a new environment:
(a) Participate in
the initial care plan meeting; and
(b) Visit the ward within thirty (30) days of
the move.
(6) The
division shall, if known, notify the provider where the ward resides if the
ward is listed on the Sex Offender Registry, has committed a sex crime or a
crime against a minor, or is otherwise required to be on the registry pursuant
to
KRS
17.500 through
17.540.
Section 13. Physical and Mental
Health Care Needs of a Ward.
(1) The division
may approve health care, treatment, or services of a ward as authorized by a
court.
(2)
(a) The division may discuss with the ward or
the ward's relative or other interested party, if appropriate, the need for
surgery or treatment if:
1. The surgery or
treatment is in the best interest of the ward; and
2.
a. The
ward is capable of understanding the information; or
b. The ward's relative or other interested
party has been involved with the ward's case.
(b) Discussion may include the possibility of
the ward's relative or other interested party petitioning the court to be
appointed as full guardian, guardian for personal affairs, or as limited
guardian for medical affairs only.
(3) The division:
(a) Shall comply with
KRS
387.660(3) and KRS Chapters
202A and 202B; and
(b) May sign a
provider's voluntary admission form if:
1. A
ward meets criteria for admission to a mental health or intellectual disability
provider;
2. The ward agrees with
voluntary admission; and
3. The
cabinet is authorized by the court to make medical decisions for the
ward.
(4) If
the medical opinion recommends nonemergency removal of a bodily organ,
amputation of a limb, sterilization, abortion, electro-convulsive therapy, or
psychosurgery, the division shall obtain and submit to the CHFS Office of Legal
Services:
(a) A written request for legal
assistance in anticipation of a motion and order to provide the medical
procedure; and
(b) A statement from
two (2) physicians, who have evaluated the ward providing their professional
opinion as to why the benefits of having the procedure outweighs the risks
involved.
(5) If the
motion and order have been received, the division shall file the following
information with the court in the case:
(a)
The motion and order prepared by OLS;
(b) The two (2) physicians'
statements;
(c) An AOC-775, Order
of Appointment of Guardian, available at the court of a ward's disability case;
and
(d) An AOC-785, Disability
Judgment, available at the court of a ward's disability case.
(6) If required by the court, the
division shall attend the hearing on the motion and order.
(7) The division shall provide a copy of the
signed order, signed consent, or denial to the:
(a) Hospital or provider where the surgery or
treatment is recommended to be performed; or
(b) Provider where the ward is residing so
that the order can be sent with the ward to the hospital or provider.
Section 14. Emergency
Removal of a Bodily Organ, Amputation of a Limb, Sterilization, Abortion,
Electro-convulsive Therapy, or Psychosurgery.
(1) If an emergency procedure needs to be
performed within twenty-four (24) hours of notification of need from a
physician to preserve the life or prevent serious impairment of the physical
health of a ward, the division shall not seek court approval.
(2) The division staff shall notify the
division director or designee of the need for an emergency procedure.
(3)
(a) The
division shall document the emergency need and time table for the procedure and
request a signed statement of emergency need from the physician.
(b) The division may request a second opinion
and a signed statement from the second physician to verify the need for surgery
or that treatment is an emergency.
Section 15. Life Saving Measures.
(1) A decision made prior to appointment
shall be honored pursuant to
KRS
311.6231, if:
(a) The ward's decision was made prior to the
disability adjudication;
(b) The
prior guardian or health care surrogate established end of life decisions;
and
(c) There are no concerns that
the decision was made for the purpose of abuse, neglect, or
exploitation.
(2) The
division may provide for end of life decisions by consulting with the ward, if
appropriate, and if no objection, initiating:
(a) The Medical Order For Scope Of Treatment
(MOST) form pursuant to
KRS
311.6225, incorporated by reference in
201
KAR 9:470, and available at
https://kbml.ky.gov/board/Documents/MOST%20Form.pdf.
or
(b) The Do Not Resuscitate (DNR)
form, incorporated by reference in
202 KAR
7:401.
(3) The procedure for the division to request
a change in code status from Full Code (FC) to Do Not Resuscitate (DNR) for a
ward for whom the cabinet has the authority to make health care decisions shall
include:
(a) Being advised by an attending
physician, after clinical examination, that the ward:
1. Has a terminal condition;
2. Is permanently unconscious; or
3. Has a comorbid condition, in which two (2)
or more coexisting medical conditions compromise the ward's chance of recovery
or of benefiting from active treatment;
(b) The physician requests that the ward's
code status be changed to DNR; and
(c) Notifying and sending the signed
DAIL-DNR-01 State Guardianship DNR Request Form and diagnostic documentation or
testing completed within the last twelve (12) months that documents the ward's
condition to one (1) of the nurse consultants.
(4) The nurse consultant shall determine if
the ward meets criteria or defer the request to change the ward's code status
to DNR to the commissioner of the department.
(5) The nurse consultant shall notify the
division of the determination that was made on the ward's code
status.
(6) Upon reaching the
determination to change the ward's code status to DNR, the nurse consultant
shall notify all involved facilities verbally and in writing by forwarding a
copy of the approval.
(7) If the
ward's medical condition improves significantly, any party involved, including
the division, may review and make a request to change the code
status.
Section 16. End
of Life Determination.
(1) Each ward shall be
full code status at the time of appointment unless an advance directive was in
place prior to appointment.
(2) If
the cabinet has the authority to make health care decisions and a health care
professional has requested end of life consideration, the division, after
consulting with the ward regarding their wishes, may request end of life care,
including:
(a) Comfort care;
(b) Hospice care;
(c) Withholding of care; or
(d) Termination of life prolonging
treatment.
(3) The
decision for end of life care shall follow the procedures established in this
subsection.
(a) The division shall be advised
by two (2) physicians, after clinical examination, that:
1.
a. The
ward has an irreversible terminal condition;
b.The ward is permanently
unconscious;
c. The ward is in a
persistent vegetative state; or
d.
Inevitable death is expected by reasonable medical judgment within a few days;
and
2. The physicians
request that the ward's treatment be altered.
(b) The nurse consultant shall obtain a
signed statement from each of the two (2) physicians documenting the
physician's professional opinion as to why it is in the best interest of the
ward to change the course of treatment.
(c) The nurse consultant shall:
1. Obtain the medical records supporting the
diagnosis and each physician's opinion;
2. Review the statements and documentation
submitted to determine if the ward meets the criteria of paragraph (a)1. of
this subsection; and
3. Assemble an
electronic outline concerning the ward's health status including recommendation
for end of life care and submit the outline to the division designee.
(d) The division designee shall:
1. Review the request and make a
recommendation to approve or not approve the request for end of life care;
and
2. Submit the electronic
outline, the nurse consultant's recommendation, and the division designee's
recommendation to the DAIL commissioner or appointed designee for final
determination of the request.
(e) Upon approval by the commissioner, or the
appointed designee, of a request for comfort care, hospice, or termination of
life support or withholding of life support measures, the division shall give
verbal approval to all involved facilities and follow-up with written
notification.
Section
17. Death of a Ward.
(1) If a
ward dies, the division shall update the data system maintained by Guardianship
by changing the ward's status to "deceased" within one (1) working day upon
notification of the death.
(2) The
division shall ensure that a relative or other interested party, if known, is
notified of the ward's death and the selected funeral home.
(3) If there are no funds available for
burial, the division shall attempt to contact a known relative or other
interested party to inform them of the ward's inability to pay for burial
expenses and provide information on possible resources for
assistance.
(4) The division shall
not grant permission for:
(a) An
autopsy;
(b) Organ or tissue
donation; or
(c) Release of the
body.
(5) If a ward dies
in an unusual or unknown circumstance, the division shall make a referral to
the Department for Community Based Services, Adult Protective
Services.
Section 18.
Incorporation by Reference.
(1) The
"DAIL-DNR-01 State Guardianship DNR Request Form", 7/2018 edition, 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
194A.050(1)