KBA PRESIDENT J.D. MEYER AND HIS WIFE MEGAN AND THEIR CHILDREN, MACY, ANDREW, ANNA LEE, WILL AND MOLLY This issue of the Kentucky Bar Association’s VOL. 85, NO. 4 B&B-Bench & Bar was published in the month of July. COMMUNICATIONS & Contents PUBLICATIONS COMMITTEE 2 President’s Page James P. Dady, Chair, Bellevue By J.D. Meyer Paul Alley, Florence Elizabeth M. Bass, Gallatin, Tenn. 8 Q&A with J.D. Meyer Rhonda J. Blackburn, Pikeville By James P. Dady Jenn L. Brinkley, Pensacola, Fla. Features: Elder Law Frances E. Catron Cadle, Lexington Elizabeth A. Deener, Lexington 20 Evaluating the Enforceability of Arbitration Agreements Cathy W. Franck, Crestwood Under Recent Kentucky Caselaw-Authority and Signatory Capacity Lonita Baker Gaines, Louisville By Lisa E. Circeo and Hannah R. Jamison William R. Garmer, Lexington 24 Overprotected? A look at guardianship and the alternatives P. Franklin Heaberlin, Prestonsburg By Mary Ellis Patton Judith B. Hoge, Louisville Jessica R. C. Malloy, Louisville 28 The Silver Tsunami: Stories, Grey Areas, and Unique Solutions Eileen M. O'Brien, Lexington from Clients with Dementia Sandra J. Reeves, Corbin By Katie E. Finnell John Schaaf, Georgetown 32 Claims Against the Estate and Medicaid Estate Recovery: Gerald R. Toner, Louisville Personal Injury/Wrongful Death Settlements, Exclusions Sadhna True, Lexington and Legislative Hurdles Zachary M. Van Vactor, Louisville By Scott E. Collins Samuel W. Wardle, Louisville Michele M. Whittington, Frankfort 36 Disabled Kentuckians Denied Divorces? A Team Changes PUBLISHER the Law in Kentucky By Shari Polur and David A. Ehsan John D. Meyers Columns EDITOR 40 Young Lawyers Division James P. Dady By Megan Keane MANAGING EDITOR 42 Northern Kentucky University Salmon P. Chase College of Law Megan L. Couch 44 University of Kentucky J. David Rosenberg College of Law DESIGN & LAYOUT 46 Effective Legal Writing By Professor Sara Ochs Jesi L. Ebelhar 47 Law Practice Management The B&B - Bench & Bar (ISSN-1521-6497) By Amy D. Cubbage is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 48 Shop Talk KY 40601-1812. Periodicals Postag­­ e paid at By Michael Losavio Frankfort, KY and additional mailing offices. 50 Lawyer Wellbeing All manuscripts for publication should be sent By Eric Y. Drogin to the Man aging Editor. Permission is granted for reproduction with credit. Publication of Bar News any article or statement is not to be deemed an endorsement of the views expressed therein by 52 Practice in the Pandemic Report the Kentucky Bar Association. By Michael S. Fore Subscription Price: $20 per year. Members 59 NextGen CM/ECF to Require Upgraded Accounts subscription is included in annual dues and is Departments not less than 50% for the lowest subscription price paid by subscribers. For more information, 60 Kentucky Bar Foundation call (502) 564-3795. 65 Kentucky Lawyer Assistance Program POSTMASTER 68 Continuing Legal Education Send address changes to: B&B - Bench & Bar Cover photo by Yager Studios 514 West Main Street 74 Who, What, When and Where Several inside graphics by Frankfort, KY 40601-1812 ©istockphoto.com/JesiEbelhar BENCH & BAR | 1 PRESIDENT'S PAGE The Kentucky Bar Association is YOUR ASSOCIATION BY J.D. MEYER, KBA PRESIDENT t looks like we are finally coming out of the COVID- 19 Pandemic. The Kentucky Supreme Court has lifted Irestrictions on jury trials, court room protocols and court- house operations. As I write this article, the Daviess Circuit Court just concluded its first jury trial in well over a year. Other courts are doing the same under the new normal, still taking precautions to avoid a spike in cases, as not all are vaccinated. Since the pandemic began, our resolve has been tested as a people. However, what I have seen is that people are resilient, especially the attorneys of the Commonwealth. I want to let each and every one of you know what an honor it is to serve you as the presi- dent of the Kentucky Bar Association (KBA). I am truly humbled at this opportunity and only hope to continue the great work that the KBA does and provides for its members. I want to commend Tom Kerrick and Steve Smith for their service as presidents of the KBA during these most unprecedented times. Steve had to make a number of difficult decisions in the last few months of his presidency as the pandemic first began. The choice to close the Bar Center was difficult but certainly necessary to protect the health and welfare of our outstanding staff. The most difficult decision he made was to cancel the 2020 convention scheduled in Covington after months of hard work and preparation and what would have been one of our best conventions ever. Steve continued to provide excellent guidance as immediate past president as the KBA maneuvered the pandemic world. Tom’s leadership as president through the pandemic has likewise been nothing but exem- plary. Tom was given a bag of lemons to begin his presidency and he did nothing but make lemonade. The creation of the Lawyers Advocating Wellness initiative focused on the much-needed topic of attorney wellbeing. If we do not take care of ourselves, how can we effectively take care of our clients? Unquestionably, we work in one of the most demanding of all professions. Without that framework in place, the KBA would have not been able to so quickly respond to the rash of attorney suicides that occurred in late December and 2 | JULY/AUGUST 2021 Change of venue Effective July 1, 2021, Lawyers Mutual has a new address. New address, same Lawyers Mutual of Kentucky steadfast service. 10503 Timberwood Circle • Suite 213 Louisville, KY 40223 502-568-6100 502-568-6103 fax lmick.com PRESIDENT'S PAGE early January. Tom, with assistance of Kentucky Lawyer Assistance KBA and provide the great programs and services as it always has. Program (KYLAP) Director Yvette Hourigan, the KYLAP and As referenced above, the COVID-19 Pandemic tested our resolve, the KBA staffs, quickly initiated a number of seminars and other but, it brought about a number of positive advancements in the opportunities to react to such tragic events. The KBA expanded the operation of the legal system. Most of these are in the technological counselling services offered to any member of the KBA through arena. Zoom has become a common term within our society. We KYLAP by removing the need to show financial hardship to qualify learned how to conduct Zoom motion hour, Zoom hearings, Zoom for the maximum of four sessions. While there are no statistics appellant arguments, Zoom depositions, Zoom mediation, Zoom on this, those programs helped to save someone’s life somewhere, conferences and even a few Zoom bench trials. The KBA even someway and somehow. conducted a virtual convention in May which proved successful in every way possible. Great speakers, fantastic topics and excellent Tom also organized the first virtual town hall meetings in each continuing legal education. All of this will help us to provide a more Supreme Court District. With the Kentucky Law Update programs economical and efficient service to our clients. throughout the state cancelled, it was important for all of you to know that the KBA was still here to help and assist you in any But we have to be careful. These advances in technology also lead way possible. These meetings provided a wonderful forum for the to an increased decline in personal contact and communication. KBA to advise you of the many programs, benefits, opportunities This affects the comradery that is a vital and crucial component and services that it has to offer you as a member. I plan to continue to an effective bar. With constant access to clients and work files, these virtual town hall meetings in the coming year as they provide it is easy to “log on” or “plug in” at night, on weekends, at home, a great benefit and forum for you to hear about the happenings at on vacation, at children’s games, even when out with your spouse, the KBA, but more importantly, to provide an opportunity for you family or friends. As attorneys we always take our work with us to voice what assistance that the KBA can provide to you. in our minds. All of this affects our wellbeing. The rule of law is as important as it ever has been. We must advance civility in the I cannot go any further in this article without commending the profession. We take great pride in being a Kentucky lawyer. The excellent staff at the KBA. Executive Director John Meyers and KBA continues to develop programs, including the Bar Leadership department heads Mary Beth Cutter, Jane Herrick, Melissa Black- Institute, to provide skills the lawyers of Kentucky need to diligently, well, Shannon Roberts, Michele Pogrotsky, Guion Johnstone and effectively and competently represent their clients. These were the Ms. Hourigan, as well as the other members of the staff (whose presidential themes of Tom Kerrick, Steve Smith, Doug Ballantine, names are all listed below) must be commended for their hard work Bill Garmer and Mike Sullivan. These concepts are as relevant today and dedication over the past 15 months. While the Bar Center as they were back then. closed, the work of the KBA did not. The staff worked remotely and continued to effectively and diligently direct the operations of the As a president, I hope to carry on the commitment of these dis- tinguished and learned individuals to these themes with an emphasis on the need to provide support to attorneys in small town practices. In participating in the virtual town hall meetings, my message was KBA EMPLOYEES that the Kentucky Bar Association is your associa- EXECUTIVE BAR COUNSEL CLE tion.