Aging Kentuckians are the fastest growing population in our state. Yet when these individuals would need guidance as to Kentucky’s guardianship proceedings or power of attorney protections, our statutes caused a lot of confusion with little protection. Two laws, effective July 2018, aim to increase protection for our aging Kentuckians while reducing confusion.
The first updated law amends KRS 210.290 and KRS Chapter 387 which detail guardianship proceedings. The objective of guardianship proceedings is to preserve individual dignity, respect, and independence of the aging and disabled Kentuckians who can no longer make certain decisions.
The importance of guardianship continues to grow given the rising number of disabled Kentuckians and the number of guardians neglecting their duties. Not everyone with a disability is cognitively impaired and in need of a state guardian. Further, it was not the intent of the legislature that every disabled person has a guardian or conservator appointed.
The new amendments provide instruction, clarification, and efficiency for the guardianship process. The most radical section of this amendment is that the guardianship proceedings can be concluded without a jury trial if (1) the parties agree, (2) there is no objection from interested parties, and (3) professionals preparing the interdisciplinary report unanimously agree that the person is at least partially disabled. This amendment is in-line with other states in the country. For other important amendments, see the linked article.
The second updated law is a complete revamp of Kentucky’s power of attorney laws, repealing 386.093, and is codified as KRS 457. Powers of attorney (POA) are tools that are designed to help individuals plan for both short-term and long-term disability. These tools allow the individual (the “principal”) to choose who they want to make decisions for them if they are unable. These tools also allow the principal to decide what amount of power they want to designate to their attorney-in-fact.
Kentucky law and powers of attorney have been vague. Because our statutory law was so vague, powerless POAs resulted. The new statute aims to provide guidance, balance, and instruction to the agent, the principal, the attorney drafting the document, and the institutions asked to recognize the documents. Not all powers of attorney are affected by KRS 457 and POAs created prior to July 2018 are not affected and remain valid so long as they complied with the law of the state as it existed at the time of execution.
Some of the most important updates codified in KRS 457 are: allowing for individuals who are not physically able to sign to direct another individual to sign so long as the reason for this method is recited somewhere in the power of attorney; the requirement that a power of attorney to be signed in the presence of two disinterested witnesses; the designation of agents appointed under the new law now considered fiduciaries; and third-parties asked to accept powers of attorneys now are afforded options to verify the power of attorney, and if verified, the third party must accept the power of attorney in the form it was presented. For more information and other important amendments, click here.