POWER OF ATTORNEY

Information from the County Attorney's Office

By Steven J. Franzen, Campbell County Attorney

Frequently, our office is asked about a Power of Attorney and its applicability as a commonly used legal document.  A Power of Attorney is legal document that assigns another person as agent to take care of your affairs as the principal.  The person assigned, your agent, is typically responsible for affairs, usually financial or healthcare matters, on your behalf as enumerated in the Power of Attorney document.  Like all other legal documents, a person must be competent to enter into and grant a Power of Attorney.   

The authority granted under any Power of Attorney will vary depending upon the exact language used.  However, a General Power of Attorney usually grants someone else authority to handle all matters as if the person granting the Power of Attorney were conducting the business himself.  A Power of Attorney is required to deal with the property of the other person using the utmost good faith to handle matters for the best interests of the person granting the Power of Attorney. 

If someone with a Power of Attorney does not act in good faith or outside the scope of the Power of Attorney, that person may be accountable for a violation of fiduciary duty.  Any civil action brought for a violation must be made within five years of the breach.

In 2018, Kentucky enacted the Uniform Power of Attorney Act to further enumerate the law involving Power of Attorney documents.  Of the most important provisions, Power of Attorneys are durable and continue through incapacity of the principal until death unless the Power of Attorney specifically provides to the contrary.  In addition, a Power of Attorney now must be signed by two (2) disinterested witnesses and notarized by a Notary Public.  However, Power of Attorneys executed before July 13, 2018 are still valid even if they do not comply with the requirements under the new law.  However, it is generally recommended to have a Power of Attorney updated every few years or when there are significant changes in your life. 

A common question our office receives is when does a Power of Attorney end.  A Power of Attorney ends or is terminated in a variety of instances.  Some of those instances include: (1) upon death; (2) upon granting by the Courts of a guardianship and conservatorship; and (3) upon termination of the Power of Attorney by the person who granted the authority.

I hope this information is interesting and helpful.  If you have any topics you would like to have covered in this column, please contact my office by e-mail at stevefranzen@fuse.net, by phone at 491-7700 or by regular mail addressed to 319 York Street, Newport, Kentucky 41071.

EXPUNGEMENT OF CONVICTIONS

Information from the County Attorney's Office

By Steven J. Franzen, Campbell County Attorney

The County Attorney’s Office regularly gets calls from individuals and receives motions filed by attorneys concerning the expungement or removal of convictions from someone’s record.  This article will explain what offenses may be eligible for expungement and the procedure to have an offense expunged.

Before proceeding, it should be noted that if your criminal case was dismissed or you were acquitted of the charge(s), the charge can be expunged 60 days after the dismissal or acquittal pursuant to KRS 431.076.

Felonies

Although many felonies convictions cannot be expunged, the opportunity for expungement may be available certain Class D felonies under KRS 431.073, passed earlier this year.  The eligible Class D felonies include third-degree burglary, drug possession, prescription forgery, theft by unlawful taking, theft by deception, stealing credit card information among several others. 

Alternatively, if the person charged completed a pretrial diversion program instead of pleading guilty, they may also be eligible for diversion.  Completion of the program results in the charge being listed as "dismissed-diverted."  This listing does not constitute a criminal conviction and the person charged is not required to list the disposition on most employment and licensing applications.

Misdemeanors & Violations (including traffic offenses)

Most misdemeanors and violations can be expunged except offenses involving sex or children.  However, you cannot expunge a misdemeanor if you have had a felony or misdemeanor conviction since the misdemeanor conviction you seek to expunge.  Further, if there is pending felony, misdemeanor, or violation charge against you, you cannot expunge a previous misdemeanor. A person can file for expungement 5 years after the completion of the sentence.

It should be noted that although traffic offenses stay on your accessible driving history record for 3 years, the traffic violation will stay on your criminal record until it is expunged.  For some, like an applicant for a commercial driver’s license, a reckless driving charge that is still on your criminal record, no matter how long ago, may be detrimental.

Juvenile Offenses

Juvenile offenses may be expunged depending on which chapter of Kentucky Revised Statute the offense was adjudicated under.  If the offense is similar to a theft, criminal mischief, or runaway and is prosecuted under chapters 630, 635, or 645, the offense may be expunged.  However, expungement is not available for offenses adjudicated under chapter 620 or 640, such as murder, rape, and dependency, neglect and abuse cases.

The process of expunging a criminal charge can take a significant amount of time and effort because it involves several steps with the multiple government agencies.  To initiate the process, the person seeking expungement must acquire a certification from the Kentucky State Police.  The process to obtain the certification can be found at: https://kycourts.gov/Expungement/Pages/process.aspx.  Once you have the certification, you must file the appropriate petition with the Court where the charge occurred.  The Court will then review the petition and decide whether to grant or deny the expungement.  If the expungement is granted, the Court and all other listed agencies will expunge any records related to the charge.  I recommend that anyone seeking to expunge a criminal record seek an attorney to assist in determining your eligibility for expungement of a criminal charge and completing the expungement process for you. 

I hope this information is interesting and helpful.  If you have any topics you would like to have covered in this column, please contact my office by e-mail at countyattorney@campbellcountyky.gov, by phone at (859) 491-7700 or by regular mail addressed to 319 York Street, Newport, Kentucky 41071.