Request By:
Stephen K. Mershon
Attorney at Law
Starks Building
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: David A. Smith, Assistant Attorney General
You have requested the opinion of this office on questions concerning the reporting requirements of the Kentucky Adult Protection Act, KRS Chapter 209.
First, you ask whether or not an attorney who knows that his client is an abused spouse must, contrary to his client's wishes, make a report to the Cabinet for Human Resources.
Secondly, you ask whether or not an attorney would be subject to the penalty provisions of KRS 209.990 for not reporting an instance of spouse abuse if his failure to so do is in accordance with his client's wishes.
For reasons which follow, it is the opinion of this office that the answer to both questions is "no." The Kentucky Adult Protection Act is intended for the benefit of those persons who, because of mental or physical incapacity, are not able to manage their own affairs. KRS 209.020(4) describes those who come within the aegis of the chapter:
"Adult" means a person eighteen (18) years of age or older or a married person without regard to age, who because of mental or physical dysfunctioning, or who is the victim of abuse or neglect inflicted by a spouse, is unable to manage his own resources, carry out the activities of daily living, or protect himself from neglect, hazardous or abusive situations without assistance from others and who has no available, willing and responsible able person to assist him and may be in need of protective services." (emphasis added)
A person who employs a lawyer indeed has an available, willing, responsible and able representative. As such, he does not meet the definition quoted hereinabove but instead is in a position to have spouse abuse reported.
Additional support for this conclusion is found in the legislature's statement of purpose, KRS 209.090, which aims the chapter at persons who lack such representation.
In view of the foregoing, it is the opinion of this office that KRS Chapter 209 neither requires nor permits a lawyer to breach the confidence between himself and his client. However, we would urge attorneys to inform their clients of the benefits of reporting abuse to the Cabinet for Human Resources.