Request By:
Honorable Pat Abell
Legal Assistant to
Secretary of the Cabinet
Office of the Governor
State Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in reply to your memorandum dated January 20, 1977, in which you stated that the Department for Human Resources has been appointed committee for an incompetent, and that the committee desires to sell the land belonging to the incompetent. You inquired whether the committee for the incompetent, in this case the Department for Human Resources, or the prospective purchaser may institute legal action to bring about the sale of said land.
We shall assume that the prospective purchaser is not an agent of the Commonwealth, and therefore, said purchaser does not have the power of eminent domain. The sale must be construed as a voluntary sale. Since the sale must be voluntary, the prospective purchaser does not have standing to sue the incompetent. See
Morgan v. King, 312 Ky. 792, 229 S.W.2d 976 (1950), in which the Court of Appeals said:
"One may not invoke the court's jurisdiction to maintain a civil action in an individual or representative capacity, unless he shows some real interest in the cause or a legal or equitable right, title or interest in the subject of the controversy. The plaintiff in an equity suit must have an actual existing interest in the subject matter involved; such should be a present, substantial interest as distinguished from a contingent interest or mere expectancy. Am. Jur. 'Parties,' Sections 10-13." (page 978)
"It is elementary that the right to sell real estate of persons under disability is purely statutory."
Poindexter v. Brumagen, 301 Ky. 699, 192 S.W.2d 960 at 961 (1946).
KRS 389.010(1);(2) states that the real estate of a person of unsound mind may be sold under a decree of a court of equity and that said decree may be rendered on a petition filed by the committee of the incompetent. In this particular situation, the committee has standing by virtue of statute to institute an action in circuit court to bring about the sale of the land belonging to the incompetent.
In summary, it is our opinion that the only person who has standing to institute an action seeking permission to sell the property of an incompetent is the committee of said incompetent. In this particular situation, the Department for Human Resources is the committee, and that department is the only party who is authorized to institute the action in circuit court.