concurring in part and dissenting in part.
Respectfully, I dissent. I confess to a great deal of confusion as to the holding in the Majority Opinion. I agree that there should have been a competency hearing and a hearing on the need for a guardianship. But if the Majority Opinion means that a jury’s determination of disability automatically terminates a durable power of attorney and mandates the appointment of a guardian, I disagree. This interpretation of the impact of KRS 386.093 on the guardianship procedure frustrates the statutory intent, and serves no legitimate purpose.
By creating the durable power of attorney the General Assembly intended to permit an individual, while competent, to arrange for the handling of his affairs should he become incompetent. This includes the power to designate an attorney in fact to manage his affairs. Such a person is a fiduciary who may be questioned as to mismanagement of the principal’s affairs to the same effect, if not by the same statutory procedure, as is true with a guardian appointed pursuant to KRS 387.500 et seq.
The guardianship statutes, as presently revised, specify that the procedure for “guardianship and conservatorship for disabled persons shall be utilized only as is necessary to promote their well-being.” KRS 387.500. KRS 387.530(d) specifies that the petition for appointment of a guardian must specify the “facts and reasons supporting the need for guardianship.”
In these circumstances a fair interpretation of the impact of KRS 386.093, the durable power of attorney statute, on the guardianship procedure is:
1) Under KRS 387.570, when the petition is filed for appointment of a guardian “the respondent shall have a jury trial” to decide incompetency.
2) Under KRS 387.580, if Mayme Floyd is found to be incompetent, the “court shall, at the same hearing, without a jury, determine” whether a guardian needs to be appointed or whether the durable power of attorney process in place is sufficient conservator of the incompetent’s affairs.
On remand, our decision should provide that the trial court has discretion, after a hearing, to decide if a guardian is unnecessary even though Mayme Floyd is found to be incompetent. If the effect of our decision is to force a guardianship on Mayme Floyd even though the trial court, after a hearing, has determined that such is both contrary to the instrument she prepared while she was competent and unnecessary, we have limited the effect of the durable power of attorney statute unduly and irrationally.
Medical science has extended the limitations on human existence to the point where many of us will now linger long in a twilight zone of incompetency and disability. Statutes such as KRS 386.093 were enacted to permit those of us who want it some measure of control over what will happen in our lives when we can no longer manage our own affairs. If the legislature permits us such self-determination, as it *62has done at least in part by the durable power of attorney statute, there is no reason for us to force our courts into the “big brother” role by mandating guardianship for the disabled. First, the person seeking guardianship status should have to prove that such is necessary. KRS 387.605 gives preference to the daughter, Peggy Rice, as the person to be appointed if we force a guardianship on Mayme Floyd when such is unnecessary. It is quite possible that Ms. Floyd’s purpose in executing the durable power of attorney was to prevent just such eventuality.
If a jury finds Mayme Floyd incompetent, as both sides agree that she is, still there is no reason to require the trial court to appoint a guardian until first the trial court has determined, after a hearing, that such “is necessary to promote [her] well-being.” KRS 387.500(3). The trial court should be left to decide, after a hearing, if management of the estate under the durable power of attorney suffices to protect Ms. Floyd’s interest. She thought so, and said so, while she was competent.
GANT and VANCE, JJ., join.