Request By:
Mr. Robert M. White
Adair County Clerk
Columbia, Kentucky 42728
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You seek our opinion as to the recordation of certain forms you attached to your letter.
UNDERLYING FACTS AND ISSUES
One of the documents is a judgment of the Adair District Court. The judgement reflects that the Respondent was found by the jury to be wholly disabled in managing his personal affairs or financial resources. Thus the judgment reflects that the court ordered that the Respondent is wholly disabled in managing his personal affairs and financial resources as defined in KRS Chapter 387 and that a conservator shall be appointed. A certificate on the judgment indicates that a certified copy of the judgment was sent to the county clerk and the conservator.
The other document is an order of appointment of guardian. It reflects that the District Court appointed a designated person as guardian of the respondent. Bond was fixed at a certain sum and surety required. The court, in the order, directed the guardian to file an annual report of the personal status and condition of his ward; and upon termination of the appointment, the guardian was directed to submit a final report, pursuant to KRS 387.670(4) and 387.710(3). A certified copy of the order was sent to the Adair County Clerk.
Your specific question is whether or not the county clerk should just file the judgment and order of the court or record them.
ANALYSIS
The judgment and order appointing a guardian for a person found wholly disabled were entered pursuant to KRS 387.500 et seq. See specifically KRS 387.520, 387.590, and 387.600.
KRS 387.770 reads:
"(1) All determinations of disability and orders of appointment, modification, and termination shall be filed as public records with the clerk of the court. All other court records of a respondent made in all proceedings under KRS 387.500 to 387.770 shall be confidential and shall not be open to the general public except as provided in subsection (3) of this section.
"(2) Following the dismissal or withdrawal of a petition filed under this chapter or a determination that a respondent is no longer disabled, the respondent may at any time move to have all court records pertaining to the proceedings expunged from the files of the court, provided that he submits a full release of all claims arising from the proceedings.
"(3) Any person seeking to obtain confidential information contained in the court files or the court records of proceedings under KRS 387.500 to 387.770 may file a written motion stating why the information is needed. The court may issue an order to disclose such information upon a showing that the disclosure is appropriate under the circumstances and in the best interest of the person or the public. The court shall maintain a log of the individuals and entities granted access to the file or records."
KRS 387.770 was enacted in 1982, effective July 1, 1982. Under subsection (1) of that statute the judgment as to disability and orders of appointment of guardians, etc., were required to be filed as public records with the office of the circuit clerk. At that point, we find no statutory basis for filing or recording of such documents with the county clerk.
However, KRS 387.590 was amended in 1984 (H.B. 780, Chapter 206). Subsection (8) was amended to provide:
"(8) The judgment of partial disability or disability and the order of appointment shall be filed in the district court. The judgment shall be indexed by the county clerk in the book in which notices of actions and encumbrances are indexed. Unless such judgment is filed and indexed, it shall not constitute notice to any subsequent bona fide purchaser for value, mortgagee, or encumbrancer. "
It may be noted that the added language is: "by the county clerk. "
The judgment as to disability and the order of appointment of a guardian for the respondent must be filed in District Court, i.e., in the office of the circuit court clerk as public records. KRS 387.590(8). See KRS 30A.010, providing that the circuit clerk serves as clerk of the district and circuit courts. However, KRS 387.590(8), as amended in 1984, requires the county clerk to index the judgment of disability (which will reflect that the court is to appoint a guardian for the disabled person). The statute expressly requires that the judgment of disability be indexed by the county clerk in the county clerk's book in which notices of pending actions and encumbrances are indexed. The subsection (8), when read as a whole, also requires that a certified copy of the judgment of disability must be filed in the county clerk's office. Unless this is done, notice to any subsequent bona fide purchaser for value, mortgagee, or encumbrancer will not be afforded. The 1984 amendment of KRS 387.590, being the latest legislation, governs.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400.
CONCLUSION
It is our opinion that the judgment of disability and order of appointment of a guardian must be filed in the circuit clerk's office. The county clerk must index the judgment of disability in the county clerk's book containing notices of lis pendens and encumbrances. A certified copy of the judgment of disability must be filed in the county clerk's office. All this is necessary to afford notice to any subsequent bona fide purchaser for value, etc.