CHAPTER 114
Substitute for HOUSE BILL No. 2469
An Act concerning guardians and conservators; amending K.S.A.
9-1215, 9-1216, 17-2263,
17-2264, 17-5828, 17-5829, 38-1505, 39-789, 44-513a, 58-629,
59-1701, 59-2203, 73-
507, 76-12b04 and 77-201 and K.S.A. 2001 Supp. 39-970, 58-24a15,
59-2401, 59-2946,
59-2948, 59-2949, 59-2951, 59-2960, 59-29b46, 59-29b48, 59-29b49,
59-29b51, 59-
29b60, 60-304, 61-3004, 65-516, 65-5117 and 76-729 and repealing
the existing sections;
also repealing K.S.A. 59-3001, 59-3003, 59-3004, 59-3006, 59-3007,
59-3008, 59-3011,
59-3012, 59-3015, 59-3016, 59-3017, 59-3018, 59-3019, 59-3020,
59-3021, 59-3022, 59-
3023, 59-3024, 59-3025, 59-3027, 59-3028, 59-3030, 59-3031,
59-3032, 59-3034, 59-
3035, 59-3037 and 59-3038 and K.S.A. 2001 Supp. 59-3002, 59-3009,
59-3010, 59-3013,
59-3014, 59-3018a and 59-3026, 59-3029, 59-3036, 59-3039
and 60-304a.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. The act shall be
known and may be cited as the act
for obtaining a guardian or a conservator, or both.
New Sec. 2. When used in the act
for obtaining a guardian or a con-
servator, or both:
(a) ``Adult with an impairment in need of
a guardian or a conservator,
or both'' means a person 18 years of age or older, or a minor who
is
considered to be of the age of majority pursuant to K.S.A. 38-101,
and
amendments thereto, or upon whom the rights of majority have
been
conferred pursuant to K.S.A. 38-108, and amendments thereto,
whose
ability to receive and evaluate relevant information, or to
effectively com-
municate decisions, or both, even with the use of assistive
technologies
or other supports, is impaired such that the person lacks the
capacity to
manage such person's estate, or to meet essential needs for
physical
health, safety or welfare, and who is in need of a guardian or a
conservator,
or both. No person who is being treated by prayer in the practice
of the
religion of any church which teaches reliance on spiritual means
alone
through prayer for healing shall be determined to be an adult with
an
impairment in need of a guardian under this act for that reason
alone,
nor considered to lack the capacity to meet essential needs for
physical
health, safety or welfare because of such person's reliance upon
such
treatment.
(b) ``Appropriate alternative'' means any
program or service, or the
use of a legal device or representative, which enables a person
with an
impairment to adequately meet essential needs for physical health,
safety
or welfare, or to reasonably manage such person's estate.
Appropriate
alternatives may include, but are not limited to, a power of
attorney, a
durable power of attorney, a power of attorney for health care
decisions,
a living will, a trust, a joint tenancy or a representative
payee.
(c) ``Conservatee'' means a person who
has a conservator.
(d) ``Conservator'' means an individual
or a corporation who or which
is appointed by the court to act on behalf of a conservatee and who
or
which is possessed of some or all of the powers and duties set out
in
section 29, and amendments thereto.
(e) ``Guardian'' means an individual or a
corporation certified in ac-
cordance with section 21, and amendments thereto, who or which is
ap-
pointed by a court to act on behalf of a ward, and who or which is
pos-
sessed of some or all of the powers and duties set out in section
26,
amendments thereto. ``Guardian'' does not mean a ``natural
guardian''
unless specified.
(f) ``In need of a guardian'' means a
person who because of both an
impairment and the lack of appropriate alternatives for meeting
essential
needs, requires the appointment of a guardian.
(g) ``In need of a conservator'' means a
person who because of both
an impairment and the lack of appropriate alternatives for managing
such
person's estate, requires the appointment of a conservator.
(h) ``Manage such person's estate'' means
making those determina-
tions and taking those actions which are reasonably necessary in
order for
a person to receive and account for personal or business income,
benefits
and property, whether real, personal or intangible, and except for
reasons
of indigency, to purchase or otherwise obtain necessary goods or
services,
to pay debts and expenses, to sell, exchange or otherwise dispose
of prop-
erty, and to plan for future accumulation, conservation,
utilization, in-
vestment, and other disposition of financial resources.
(i) ``Meet essential needs for physical
health, safety or welfare'' means
making those determinations and taking those actions which are
reason-
ably necessary in order for a person to obtain or be provided with
shelter,
sustenance, personal hygiene or health care, and without which
serious
illness or injury is likely to occur.
(j) ``Minor'' means any person defined by
K.S.A. 38-101, and amend-
ments thereto, as being within the period of minority.
(k) ``Minor with an impairment in need of
a guardian or a conservator,
or both'' means a person under 18 years of age who otherwise meets
the
definition of an ``adult with an impairment in need of a guardian
or con-
servator, or both'' and whose impairment is expected to continue
beyond
the age of 18.
(l) ``Natural guardian'' means both the
biological or adoptive mother
and father of a minor if neither parent has been found to be an
adult with
an impairment in need of a guardian or has had parental rights
terminated
by a court of competent jurisdiction. If either parent of a minor
is de-
ceased, or has been found to be an adult with an impairment in need
of
a guardian or has had parental rights terminated by a court of
competent
jurisdiction, then the other parent shall be the natural guardian,
unless
also deceased, or found to be an adult with an impairment in need
of a
guardian, or has had parental rights terminated by a court of
competent
jurisdiction, in which case no person shall qualify as the natural
guardian.
(m) ``Person who has been previously
adjudged as impaired in an-
other state'' means a person who has been duly adjudged by a court
of
competent jurisdiction of any other state to be unable to meet
essential
needs for physical health, safety or welfare or to manage such
person's
estate and for whom a guardian or a conservator, or other similarly
em-
powered fiduciary, has been appointed by that court, but who now
resides
within Kansas or for whom plans have been made by such person's
guard-
ian or other fiduciary to relocate the person to Kansas.
(n) ``Person in need of an ancillary
conservator'' means a person not
residing within Kansas, who has been duly adjudged by a court of
com-
petent jurisdiction of another state to be unable to manage such
person's
estate and for whom a conservator or other fiduciary of the
person's estate
has been appointed by that court, and who has property in Kansas
for
which a conservator is required.
(o) ``Proposed ward'' means a person for
whom a petition for the
appointment of a guardian pursuant to section 9, 10, 11 or 12, and
amend-
ments thereto, has been filed.
(p) ``Proposed conservatee'' means a
person for whom a petition for
the appointment of a conservator pursuant to section 9, 10, 11, 12
or 13,
and amendments thereto, has been filed.
(q) ``Ward'' means a person who has a
guardian.
(r) The terms defined in K.S.A. 2001
Supp. 59-2946 and 59-29b46,
and amendments thereto, have the meanings provided by those
statutes.
New Sec. 3. In computing the date
upon or by which any act must
be done or hearing held under provisions of this article, the day
on which
an act or event occurred and from which a designated period of time
is
to be calculated shall not be included, but the last day in a
designated
period of time shall be included unless that day falls on a
Saturday, Sunday
or legal holiday, in which case the next day which is not a
Saturday, Sunday
or legal holiday shall be considered to be the last day.
New Sec. 4. (a) A natural guardian
shall have the right to the custody
of the natural guardian's minor child and the right to exercise
control over
the person of the natural guardian's minor child as provided by
law, unless
a guardian has been appointed for the minor. The natural guardian
of
such minor has the right and responsibility to hold in trust and
manage
such person's estate for such person's benefit all of the personal
and real
property vested in such minor when the total of such property does
not
exceed $10,000 in value, unless a guardian or conservator has been
ap-
pointed for the minor.
(b) Nothing in this act shall be
construed to relieve a natural guardian
of any obligation imposed by law for the support, maintenance,
care,
treatment, habilitation or education of that natural guardian's
minor child.
New Sec. 5. (a) Any natural
guardian, by last will, may nominate a
conservator of only that portion of the estate of such guardian's
minor
child, whether born at the time of the execution of the will or
afterwards,
which is devised or bequeathed by such natural guardian to the
child.
(b) A surviving natural guardian, by last
will or by a trust instrument
establishing an inter vivos trust, may nominate a guardian or
conservator,
or both, for any of such guardian's minor children, whether born at
the
time of the execution of the will or trust instrument or
afterwards.
(c) The nominated guardian or
conservator, if a fit and proper person,
shall be appointed by the district court pursuant to section 19,
and amend-
ments thereto, if it is found, during the trial held pursuant to
section 18,
and amendments thereto, that a guardian or conservator, or both,
should
be appointed for the minor child of the testator or settlor.
New Sec. 6. (a) Any court having
either control over or possession
of any amount of money not exceeding $100,000, the right to which
is
vested in a minor, shall have the discretion to authorize, without
the
appointment of a conservator or the giving of bond, and
notwithstanding
the authority of a natural guardian as provided for in section 4,
and
amendments thereto, the deposit of the money in a savings account
of a
bank, credit union, savings and loan association or any other
investment
account that the court may authorize, payable either to a
conservator, if
one shall be appointed for the minor, or to the minor upon
attaining the
age of 18 years.
(b) Any court having either control over
or possession of any amount
of money not exceeding $10,000, the right to which is vested in a
minor,
shall have the discretion to order the payment of the money to any
person,
including the natural guardian of the minor, or the minor. If the
person
is the conservator for the minor, the court may waive or recommend
the
waiver of the requirement of a bond. If the person is anyone other
than
the minor, the court shall order that person to hold in trust and
manage
such person's estate for such person's benefit.
(c) Any court having either control over
or possession of any amount
of money not exceeding $10,000, the right to which is vested in a
person
for whom a guardian has been appointed, shall have the discretion
to
authorize, without the appointment of a conservator or the giving
of bond,
the deposit of the money in a savings account of a bank, credit
union or
savings and loan association, payable to the guardian for the
benefit of
the ward if authorized pursuant to subsection (e)(8) of section 26,
and
amendments thereto, payable to a conservator, if one shall be
appointed
for the person, or payable to the ward on restoration to
capacity.
New Sec. 7. An adult person for
whom no guardian or conservator
has been appointed, and who is not a proposed ward or a proposed
con-
servatee may file in the district court of the county of residence
of such
person a verified petition requesting the appointment of a
conservator
for the petitioner. The petition shall include:
(a) The person's name, age, date of
birth, address of permanent res-
idence and present address or whereabouts, if different from the
person's
permanent residence;
(b) the factual basis upon which the
person alleges the need for the
appointment of a conservator;
(c) the name, and address, and
relationship to the person, if any, of
the individual or corporation whom the person requests that the
court
appoint as the conservator and whether such individual or
corporation
should be required to file a bond. If the proposed conservator is
under
contract with the Kansas guardianship program, the petition shall
state
that fact;
(d) a request that the court make a
determination that there is a need
for the appointment of a conservator and that the court appoint a
con-
servator;
(e) the names and addresses of the
relatives nearest in kinship to the
person;
(f) the general character and probable
value of the real and personal
property, including the amount and sources of income, of the
person;
(g) the name, address of any existing
fiduciary for the person and a
description of that fiduciary relationship.
New Sec. 8. Upon the filing of a
petition as provided for in section
7, and amendments thereto, the court shall issue an order fixing
the date,
time and place of the trial on the petition and order that notice
of this
trial shall be given to such persons as the court shall direct. The
trial may
be held forthwith and without notice if the court determines that
holding
a trial forthwith and without notice is in the best interests of
the peti-
tioner. Upon completion of the trial, if the court finds that the
petitioner
has knowingly and voluntarily made this request and that it is in
the best
interests of the petitioner that a conservator be appointed, the
court, upon
the filing of an oath and a bond in such an amount as the court may
direct
pursuant to section 20, and amendments thereto, shall issue letters
of
conservatorship to the individual or corporation named in the
petition, if
fit and proper to be so appointed.
New Sec. 9. (a) (1) Any person may
file in the district court of the
county of residence of the proposed ward or proposed conservatee or
of
any county wherein the proposed ward or proposed conservatee may
be
found, a verified petition requesting the appointment of a guardian
or a
conservator, or both, for an adult with an impairment in need of a
guard-
ian or conservator, or both. If the proposed conservatee is not a
resident
of or present within the state of Kansas, such petition may be
filed in the
district court of any county in which any property of the proposed
con-
servatee is situated.
(2) If a petition is filed in the
district court of a county other than the
county of residence of the proposed ward or proposed conservatee,
the
court may consider whether it is in the best interests of the
proposed
ward or proposed conservatee or in the interests of justice for the
pro-
ceedings to take place in that county.
(3) If the court finds it is not in the
best interests of the proposed
ward or proposed conservatee or in the interests of justice that
the pro-
ceedings take place in that county and the proposed ward or
proposed
conservatee is a nonresident of the state of Kansas, the court may
dismiss
the matter immediately, or may continue the matter for a specific
period
of time not to exceed 60 days to allow for the filing of
proceedings in the
state of residence. After the expiration of that period of time, or
upon the
filing of proceedings in the state of residence, the court shall
dismiss the
petition without prejudice.
(4) If the court finds it is not in the
best interests of the proposed
ward or proposed conservatee or in the interests of justice that
the pro-
ceedings take place in that county and the proposed ward or
proposed
conservatee is a resident of a different county in Kansas, the
court may
dismiss the matter immediately, or may transfer venue to the county
of
residence, or may continue the matter for a specific period of time
not
to exceed 60 days to allow for the filing of proceedings in the
county of
residence. After the expiration of that period of time, or upon the
filing
of proceedings in the county of residence, the court shall dismiss
the
petition without prejudice.
(b) The petition shall include:
(1) The petitioner's name and
address;
(2) the proposed ward's or proposed
conservatee's name, age, date
of birth, address of permanent residence, and present address or
where-
abouts, if different from the proposed ward's or proposed
conservatee's
permanent residence;
(3) if the proposed ward or proposed
conservatee is a nonresident of
the county in which the petition is filed, a statement of why it is
in the
best interests of the proposed ward or proposed conservatee or in
the
interests of justice for the proceedings to take place in that
county;
(4) if the proposed ward or proposed
conservatee is under the age of
18 years, the factual circumstances under which the petitioner
alleges
that the minor should be considered to be of the age of majority
pursuant
to the provisions of K.S.A. 38-101, and amendments thereto, or
concern-
ing when and where the rights of majority were conferred upon the
minor
pursuant to the provisions of K.S.A. 38-108, and amendments
thereto;
(5) a statement that it is the
petitioner's belief that the proposed ward
or proposed conservatee is an adult with an impairment in need of
a
guardian or a conservator, or both;
(6) the factual basis upon which the
petitioner makes that allegation;
(7) the names and addresses of any
spouse, adult children and adult
grandchildren of the proposed ward or proposed conservatee, and
those
of any parent and adult siblings of the proposed ward or proposed
con-
servatee, or if no such names or addresses are known to the
petitioner,
the name and address of at least one adult who is nearest in
kinship to
the proposed ward or proposed conservatee, or if none, that fact.
If no
such names or addresses are known to the petitioner, but the
petitioner
has reason to believe such persons exist, then the petition shall
state that
fact and that the petitioner has made diligent inquiry to learn
those names
and addresses;
(8) the name and address of any person or
agency having custody of
the proposed ward or proposed conservatee, or any other person
or
agency who has assumed responsibility for the proposed ward or
proposed
conservatee, and the circumstances under which the proposed ward
or
proposed conservatee came into such person's or agency's care or
control;
(9) the name and address of any person or
corporation acting for or
nominated to act on behalf of the proposed ward or proposed
conservatee
pursuant to any power of attorney, trust or other fiduciary
relationship
established by any court order, and a description of that authority
or
relationship. If not known, the petition shall state that the
petitioner has
made diligent inquiry to learn this information;
(10) a list and description of all court
proceedings in which the pro-
posed ward or conservatee is a party, or is the subject of, or may
be a
beneficiary of, or in which any rights of the proposed ward or
proposed
conservatee may be determined or affected, and the name and
address
of any attorney who represents the proposed ward or proposed
conser-
vatee in such matter. If not known, the petition shall state that
the peti-
tioner has made diligent inquiry to learn this information;
(11) in general terms, the location,
type, and value of any real or
personal property of the proposed ward or proposed conservatee,
includ-
ing the amount and sources of any income of the proposed ward or
pro-
posed conservatee. If not known, the petition shall state that the
peti-
tioner has made diligent inquiry to learn this information;
(12) the names and addresses of witnesses
by whom the truth of the
petition may be proved;
(13) the name, address, and relationship
to the proposed ward or
proposed conservatee, if any, of the individual or corporation whom
the
petitioner suggests that the court appoint as the guardian or as
the con-
servator, or both, and if the suggested guardian or conservator is
under
contract with the Kansas guardianship program, that fact;
(14) if the petitioner suggests the
appointment of co-guardians or co-
conservators, or both, a statement of the reasons why such
appointment
is sought and whether the petitioner suggests that the co-guardians
or co-
conservators, if appointed, should be able to act independently or
whether
they should be required to act only in concert or only in concert
with
regard to specified matters; and
(15) a request that the court make a
determination that the proposed
ward or proposed conservatee is an adult with an impairment in need
of
a guardian or a conservator, or both, that the court enter one or
more of
the orders provided for in sections 14, 15 and 16, and
amendments
thereto, and that the court appoint a guardian or a conservator, or
both,
for the proposed ward or proposed conservatee.
(c) Any such petition may be accompanied
by, or the court may re-
quire that such petition be accompanied by, a report of an
examination
and evaluation which meets the requirements of section 15, and
amend-
ments thereto. In such case, the petition may include a request
that the
court accept this report in lieu of ordering any additional
examination and
evaluation pursuant to section 15, and amendments thereto.
(d) Any such petition may be accompanied
by, or the court may re-
quire that such petition be accompanied by, a proposed guardianship
plan
as provided for in section 27, and amendments thereto, or a
proposed
conservatorship plan as provided for in section 30, and
amendments
thereto, or both.
New Sec. 10. (a) (1) Any person may
file in the district court of the
county of residence of the proposed ward or proposed conservatee or
of
any county wherein the proposed ward or proposed conservatee may
be
found, a verified petition requesting the appointment of a guardian
or a
conservator, or both, for a minor in need of a guardian or
conservator, or
both. If the proposed conservatee is not a resident of or present
within
the state of Kansas, such petition may be filed in the district
court of any
county in which any property of the proposed conservatee is
situated.
(2) If a petition is filed in the
district court of a county other than the
county of residence of the minor, the court may consider whether it
is in
the best interests of the minor or in the interests of justice for
the pro-
ceedings to take place in that county.
(3) If the court finds it is not in the
best interests of the minor or in
the interests of justice that the proceedings take place in that
county and
the minor is a nonresident of the state of Kansas, the court may
dismiss
the matter immediately, or may continue the matter for a specific
period
of time not to exceed 60 days to allow for the filing of
proceedings in the
state of residence. After the expiration of that period of time, or
upon the
filing of proceedings in the state of residence, the court shall
dismiss the
petition without prejudice.
(4) If the court finds it is not in the
best interests of the minor or in
the interests of justice that the proceedings take place in that
county and
the minor is a resident of a different county in Kansas, the court
may
dismiss the matter immediately, or may transfer venue to the county
of
residence, or may continue the matter for a specific period of time
not
to exceed 60 days to allow for the filing of proceedings in the
county of
residence. After the expiration of that period of time, or upon the
filing
of proceedings in the county of residence, the court shall dismiss
the
petition without prejudice.
(b) The petition shall include:
(1) The petitioner's name and
address;
(2) the minor's name, age, date of birth,
address of permanent resi-
dence, and present address or whereabouts, if different from the
minor's
permanent residence;
(3) if the minor is a nonresident of the
county in which the petition
is filed, a statement of why it is in the best interests of the
minor or in
the interests of justice for the proceedings to take place in that
county;
(4) a statement that it is the
petitioner's belief that the proposed ward
or proposed conservatee is a minor in need of a guardian or
conservator,
or both;
(5) the factual basis upon which the
petitioner makes that allegation;
(6) the names and addresses of any spouse
of the minor, any natural
guardian, any grandparent, any person nominated by a natural
guardian
to be the guardian or conservator, or both, any child or children
of the
minor, any permanent guardian appointed for the minor pursuant
to
K.S.A. 38-1584, and amendments thereto, any fiduciary appointed for
the
minor by any court order, and any other person or agency having
or
claiming a right to legal or physical custody of or visitation with
the minor
or who has assumed responsibility for or care of the minor, and the
cir-
cumstances under which the minor came into such person's or
agency's
care or control. If no such names or addresses are known to the
petitioner,
but the petitioner has reason to believe such persons exist, then
the pe-
tition shall state that fact and that the petitioner has made
diligent inquiry
to learn those names and addresses;
(7) a list and description of all court
proceedings in which the minor
is or has recently been a party, or is or has recently been the
subject of,
or was or may be a beneficiary of, or in which any rights of the
minor
were or may be determined or affected, including any proceedings
con-
cerning the custody of or visitation with the minor, any domestic
relations
matters, juvenile proceedings or adoptions, and the name and
address of
any attorney who represents or has represented the minor in any
such
matter. If not known, the petition shall state that the petitioner
has made
diligent inquiry to learn this information;
(8) in general terms, the location, type,
and value of any real or per-
sonal property of the minor, including the amount and sources of
any
income of the minor. If not known, the petition shall state that
the peti-
tioner has made diligent inquiry to learn this information;
(9) the names and addresses of witnesses
by whom the truth of the
petition may be proved;
(10) the name, address, and relationship
to the minor, if any, of the
individual or corporation whom the petitioner suggests that the
court
appoint as the guardian or as the conservator, or both;
(11) if the petitioner suggests the
appointment of co-guardians or co-
conservators, or both, a statement of the reasons why such
appointment
is sought and whether the petitioner suggests that the co-guardians
or co-
conservators, if appointed, should be able to act independently or
whether
they should be required to act only in concert or only in concert
with
regard to specified matters; and
(12) a request that the court make a
determination that the proposed
ward or proposed conservatee is a minor in need of a guardian or a
con-
servator, or both, that the court enter one or more of the orders
provided
for in sections 14 and 16, and amendments thereto, and that the
court
appoint a guardian or a conservator, or both, for the minor.
(c) Any such petition may be accompanied by,
or the court may require
that such petition be accompanied by, a proposed guardianship plan
as
provided for in section 27, and amendments thereto, or a proposed
con-
servatorship plan as provided for in section 30, and amendments
thereto,
or both.
New Sec. 11. (a) (1) Any person may
file in the district court of the
county of residence of the proposed ward or proposed conservatee or
of
any county wherein the proposed ward or proposed conservatee may
be
found, a verified petition requesting the appointment of a guardian
or a
conservator, or both, for a minor with an impairment in need of a
guardian
or conservator, or both. If the proposed conservatee is not a
resident of
or present within the state of Kansas, such petition may be filed
in the
district court of any county in which any property of the proposed
con-
servatee is situated. If a petition is filed in the district court
of a county
other than the county of residence of the minor, the court may
consider
whether it is in the best interests of the minor or in the
interests of justice
for the proceedings to take place in that county.
(2) If the court finds it is not in the
best interests of the minor or in
the interests of justice that the proceedings take place in that
county and
the minor is a nonresident of the state of Kansas, the court may
dismiss
the matter immediately, or may continue the matter for a specific
period
of time not to exceed 60 days to allow for the filing of
proceedings in the
state of residence. After the expiration of that period of time, or
upon the
filing of proceedings in the state of residence, the court shall
dismiss the
petition without prejudice.
(3) If the court finds it is not in the
best interests of the minor or in
the interests of justice that the proceedings take place in that
county and
the minor is a resident of a different county in Kansas, the court
may
dismiss the matter immediately, or may transfer venue to the county
of
residence, or may continue the matter for a specific period of time
not
to exceed 60 days to allow for the filing of proceedings in the
county of
residence. After the expiration of that period of time, or upon the
filing
of proceedings in the county of residence, the court shall dismiss
the
petition without prejudice.
(b) The petition shall include:
(1) The petitioner's name and
address;
(2) the minor's name, age, date of birth,
address of permanent resi-
dence, and present address or whereabouts, if different from the
minor's
permanent residence;
(3) if the minor is a nonresident of the
county in which the petition
is filed, a statement of why it is in the best interests of the
minor or in
the interests of justice for the proceedings to take place in that
county;
(4) a statement that it is the
petitioner's belief that the proposed ward
or proposed conservatee is a minor with an impairment in need of
a
guardian or conservator, or both;
(5) the factual basis upon which the
petitioner makes this allegation;
(6) the names and addresses of any spouse
of the minor, any natural
guardian, any grandparent, any person nominated by a natural
guardian
to be the guardian or conservator, or both, any child or children
of the
minor, any permanent guardian appointed for the minor pursuant
to
K.S.A. 38-1584, and amendments thereto, any fiduciary appointed for
the
minor by any court order, and any other person or agency having
or
claiming a right to legal or physical custody of or visitation with
the minor
or who has assumed responsibility for or care of the minor, and the
cir-
cumstances under which the minor came into such person's or
agency's
care or control. If no such names or addresses are known to the
petitioner,
but the petitioner has reason to believe such persons exist, then
the pe-
tition shall state that fact and that the petitioner has made
diligent inquiry
to learn those names and addresses;
(7) a list and description of all court
proceedings in which the minor
is or has recently been a party, or is or has recently been the
subject of,
or was or may be a beneficiary of, or in which any rights of the
minor
were or may be determined or affected, including any proceeding
con-
cerning the custody of or visitation with the minor, any domestic
relations
matters, juvenile proceedings or adoptions, and the name and
address of
any attorney who represents or has represented the minor in any
such
matter. If not known, the petition shall state that the petitioner
has made
diligent inquiry to learn this information;
(8) in general terms, the location, type,
and value of any real or per-
sonal property of the minor, including the amount and sources of
any
income of the minor. If not known, the petition shall state that
the peti-
tioner has made diligent inquiry to learn this information;
(9) the names and addresses of witnesses
by whom the truth of the
petition may be proved;
(10) the name, address, and relationship
to the minor, if any, of the
individual or corporation whom the petitioner suggests that the
court
appoint as the guardian or as the conservator, or both;
(11) if the petitioner suggests the
appointment of co-guardians or co-
conservators, or both, a statement of the reasons why such
appointment
is sought and whether the petitioner suggests that the co-guardians
or co-
conservators, if appointed, should be able to act independently or
whether
they should be required to act only in concert or only in concert
with
regard to specified matters; and
(12) a request that the court make a
determination that the proposed
ward or proposed conservatee is a minor with an impairment in need
of
a guardian or conservator, or both, that the court enter one or
more of
the orders provided for in sections 14, 15 and 16, and
amendments
thereto, that the court appoint a guardian or a conservator, or
both, for
the minor and that the court order that this appointment shall
extend
beyond the minor's 18th birthday.
(c) Any such petition may be accompanied
by, or the court may re-
quire that such petition be accompanied by, a report of an
examination
and evaluation which meets the requirements of section 15, and
amend-
ments thereto. In such case, the petition may include a request
that the
court accept this report in lieu of ordering any additional
examination and
evaluation pursuant to section 15, and amendments thereto.
(d) Any such petition may be accompanied
by, or the court may re-
quire that such petition be accompanied by, a proposed guardianship
plan
as provided for in section 27, and amendments thereto, or a
proposed
conservatorship plan as provided for in section 30, and
amendments
thereto, or both.
New Sec. 12. (a) The guardian,
conservator or other similarly em-
powered fiduciary appointed in any other state for a person who has
been
previously adjudged as impaired in another state may file in the
district
court of the county wherein the proposed ward or proposed
conservatee
may be found or wherein the petitioner plans to relocate the
proposed
ward or proposed conservatee, a verified petition requesting that
the
court give full faith and credit to the prior adjudication and
appoint a
guardian or a conservator, or both, in Kansas. The petition shall
also
declare that immediately upon such appointment, the petitioner will
take
the necessary action to terminate the proceedings in the other
state.
(b) The petition shall include:
(1) The petitioner's name and
address;
(2) the proposed ward's or proposed
conservatee's name, age, date
of birth, address of permanent residence, and present address or
where-
abouts, if different from the proposed ward's or proposed
conservatee's
permanent residence;
(3) if the proposed ward or proposed
conservatee is not already pres-
ent within Kansas, the address and nature of the place located
within
Kansas to which the petitioner plans to relocate the proposed ward
or
proposed conservatee if the court does appoint a guardian or
conservator,
or both, in Kansas;
(4) the place where and the date upon
which the petitioner was ap-
pointed as the guardian, conservator or other similarly empowered
fidu-
ciary for the proposed ward or proposed conservatee and a statement
that
this appointment remains in full force and effect;
(5) the factual basis upon which the
petitioner alleges the need for
the appointment of a guardian or conservator, or both, in
Kansas;
(6) the names and addresses of any
spouse, adult children and adult
grandchildren of the proposed ward or proposed conservatee, and
those
of any parent and adult siblings of the proposed ward or proposed
con-
servatee, or if no such names or addresses are known to the
petitioner,
the name and address of at least one adult who is nearest in
kinship to
the proposed ward or proposed conservatee, or if none, that fact.
If no
such names or addresses are known to the petitioner, but the
petitioner
has reason to believe such persons exist, then the petition shall
state that
fact and that the petitioner has made diligent inquiry to learn
those names
and addresses;
(7) the name and address of any person or
corporation acting for or
nominated to act on behalf of the proposed ward or proposed
conservatee
pursuant to any power of attorney, trust or other fiduciary
relationship
established by any court order, other than the appointment in the
other
state of the petitioner as the guardian, conservator or other
similarly em-
powered fiduciary for the proposed ward or proposed conservatee,
and a
description of that authority or relationship. If not known, the
petition
shall state that the petitioner has made diligent inquiry to learn
this in-
formation;
(8) a list and description of all court
proceedings in which the pro-
posed ward or conservatee is a party, or is the subject of, or may
be a
beneficiary of, or in which any rights of the proposed ward or
proposed
conservatee may be determined or affected, and the name and
address
of any attorney who represents the proposed ward or proposed
conser-
vatee in such matter. If not known, the petition shall state that
the peti-
tioner has made diligent inquiry to learn this information;
(9) in general terms, the location, type
and value of any real or per-
sonal property of the proposed ward or proposed conservatee,
including
the amount and sources of any income of the proposed ward or
proposed
conservatee. If not known, the petition shall state that the
petitioner has
made diligent inquiry to learn this information;
(10) the names and addresses of the
witnesses by whom the truth of
the petition may be proved;
(11) the name, address, and relationship
to the proposed ward or
proposed conservatee, if any, of the individual or corporation whom
the
petitioner suggests that the court appoint as the guardian or as
the con-
servator, or both, and if the suggested guardian or conservator is
under
contract with the Kansas guardianship program, that fact;
(12) if the petitioner suggests the
appointment of co-guardians or co-
conservators, or both, a statement of the reasons why such
appointment
is sought and whether the petitioner suggests that the co-guardians
or co-
conservators, if appointed, should be able to act independently or
whether
they should be required to act only in concert or only in concert
with
regard to specified matters;
(13) a declaration that, immediately upon
the appointment of a
guardian or conservator in this state, the petitioner will take the
necessary
action to terminate the proceedings in the other state; and
(14) a request that the court make a
determination that the proposed
ward or proposed conservatee is a person who has been previously
ad-
judged as impaired in another state, that the court enter one or
more of
the orders provided for in sections 14 and 16, and amendments
thereto,
and that the court appoint a guardian or conservator, or both, for
the
proposed ward or proposed conservatee in Kansas.
(c) Any such petition shall be
accompanied by a duly authenticated
copy of the order of adjudication and appointment and documents
show-
ing the continuing authority of the petitioner in the other
state.
(d) Any such petition may be accompanied
by, or the court may re-
quire that such petition be accompanied by, a proposed guardianship
plan
as provided for in section 27, and amendments thereto, or a
proposed
conservatorship plan as provided for in section 30, and
amendments
thereto, or both.
New Sec. 13. (a) The conservator or
other similarly empowered fi-
duciary appointed in any other state for a person in need of an
ancillary
conservator may file in the district court of any county in which
any prop-
erty of the proposed conservatee is situated a verified petition
requesting
the appointment of an ancillary conservator in Kansas.
(b) The petition shall include:
(1) The petitioner's name and address,
and a statement that the pe-
titioner is the conservator or other similarly empowered fiduciary
ap-
pointed in another state, and that this appointment remains in full
force
and effect;
(2) the proposed conservatee's name, age,
date of birth, address of
permanent residence, and present address or whereabouts, if
different
from the proposed conservatee's permanent residence;
(3) a statement that the proposed
conservatee is a person in need of
an ancillary conservator;
(4) the factual basis upon which the
petitioner alleges the need for
an ancillary conservatorship in this state;
(5) the names and addresses of any
spouse, adult children and adult
grandchildren of the proposed conservatee, and those of any parent
and
adult siblings of the proposed conservatee, or if no such names or
ad-
dresses are known to the petitioner, the name and address of at
least one
adult who is nearest in kinship to the proposed conservatee. If no
such
names or addresses are known to the petitioner, but the petitioner
has
reason to believe such persons exist, then the petition shall state
that fact
and that the petitioner has made diligent inquiry to learn those
names
and addresses;
(6) the name and address of any person or
corporation acting for or
nominated to act on behalf of the proposed conservatee in this
state pur-
suant to any power of attorney, trust or other fiduciary
relationship es-
tablished by any court order, and a description of that authority
or rela-
tionship. If not known, the petition shall state that the
petitioner has made
diligent inquiry to learn this information;
(7) the location and value of the
property within Kansas for which an
ancillary conservatorship is being sought;
(8) the names and addresses of witnesses
by whom the truth of the
petition may be proved;
(9) the name, address and relationship to
the proposed conservatee,
if any, of the individual or corporation whom the petitioner
suggests that
the court appoint as the ancillary conservator, and if the
suggested ancil-
lary conservator is under contract with the Kansas guardianship
program,
that fact;
(10) if the petitioner suggests the
appointment of co-ancillary con-
servators, a statement of the reasons why such appointment is
sought and
whether the petitioner suggests that the co-ancillary conservators,
if ap-
pointed, should be able to act independently or whether they should
be
required to act only in concert or only in concert with regard to
specified
matters; and
(11) a request that the court make a
determination that the proposed
conservatee is a person in need of an ancillary conservator, that
the court
enter one or more of the orders provided for in sections 14 and 16,
and
amendments thereto, and that the court appoint an ancillary
conservator
for the proposed conservatee in this state.
(c) The petition shall be accompanied by
a duly authenticated copy
of the order of adjudication and appointment and documents
showing
the continuing authority of the petitioner in the other state.
(d) Any such petition may be accompanied
by, or the court may re-
quire that such petition be accompanied by, a proposed
conservatorship
plan as provided for in section 30, and amendments thereto.
New Sec. 14. (a) Upon the filing of
a petition as provided for in
section 9, and amendments thereto, alleging that the proposed ward
or
proposed conservatee is an adult with an impairment in need of a
guardian
or conservator, or both, or as provided for in section 11, and
amendments
thereto, alleging that the proposed ward or proposed conservatee is
a
minor with an impairment in need of a guardian or conservator, or
both,
the district court shall issue the following:
(1) An order fixing the date, time and
place of the trial on the petition.
Such trial, in the court's discretion, may be conducted in a
courtroom, a
treatment facility or at some other suitable place. The time fixed
in the
order shall in no event be earlier than seven days or later than 21
days
after the date of the filing of the petition. If a demand for a
trial by jury
is filed pursuant to subsection (b) of section 18, and amendments
thereto,
by the proposed ward or proposed conservatee, the court may
continue
the trial and fix a new time and place of the trial at a time
beyond the 21
days but within a reasonable time not to exceed 30 days from the
date of
the filing of the demand.
(2) An order requiring that the proposed
ward or proposed conser-
vatee appear at the time and place of the trial unless the court
makes a
finding prior to the trial that the presence of the proposed ward
or pro-
posed conservatee will be injurious to the person's health or
welfare, or
that the proposed ward's or proposed conservatee's impairment is
such
that the person could not meaningfully participate in the
proceedings, or
that the proposed ward or proposed conservatee has filed with the
court
a written waiver of such person's right to appear in person. In any
such
case, the court shall enter in the record of the proceedings the
facts upon
which the court has found that the presence of the proposed ward
or
proposed conservatee at the trial should be excused.
Notwithstanding the
foregoing provisions of this subsection, if the proposed ward or
proposed
conservatee files with the court at least one day prior to the date
of the
trial a written notice stating the person's desire to be present at
the trial,
the court shall order that the proposed ward or proposed
conservatee
must be present at the trial.
(3) An order appointing an attorney to
represent the proposed ward
or proposed conservatee. The court shall give preference, in the
appoint-
ment of this attorney, to any attorney who has represented the
proposed
ward or proposed conservatee in other matters if the court has
knowledge
of that prior representation, or to an attorney whom the proposed
ward
or proposed conservatee has requested. The proposed ward or
proposed
conservatee, if an adult, shall have the right to engage an
attorney of the
proposed ward's or proposed conservatee's own choice and, in such
case,
the attorney appointed by the court shall be relieved of all
duties. Any
appointment made by the court shall terminate upon a final
determina-
tion of the petition and any appeal therefrom, unless the court
continues
the appointment by further order. Thereafter, an attorney may be
ap-
pointed by the court if requested, in writing, by the ward,
conservatee,
guardian or conservator, or upon the court's own motion.
(4) An order fixing the date, time and a
place that is in the best
interests of the proposed ward or proposed conservatee, at which
the
proposed ward or proposed conservatee shall have the opportunity
to
consult with the court appointed attorney. This consultation shall
be
scheduled to occur not later than five days prior to the scheduled
trial on
the petition, provided that if an examination and evaluation as
provided
for in section 15, and amendments thereto, is ordered, then this
consul-
tation shall be scheduled to occur prior to the time at which that
exami-
nation and evaluation is scheduled to occur.
(5) A notice as provided for in section
17, and amendments thereto.
(6) An order for an examination and
evaluation as provided for in
section 15, and amendments thereto. If the petition is accompanied
by a
report of an examination and evaluation of the proposed ward or
proposed
conservatee, as provided for in section 9 or 11, and amendments
thereto,
and the court determines that such report meets the requirements
of
section 15, and amendments thereto, the court may determine that
no
additional examination or evaluation is required and that none
shall be
ordered unless requested by the proposed ward or proposed
conservatee
pursuant to subsection (d) of section 15, and amendments
thereto.
(b) Upon the filing of a petition as
provided for in section 10, and
amendments thereto, alleging that the proposed ward or proposed
con-
servatee is a minor in need of a guardian or conservator, or both,
the
court shall issue an order fixing the date, time and place of the
trial on
the petition. If the petition is filed on behalf of the minor by
the minor's
natural guardian, the time of the hearing designated in the order
may be
forthwith and without notice. In all other cases the trial shall be
held no
earlier than seven days or later than 21 days after the date of the
filing
of the petition, unless those persons or agencies entitled to
notice pur-
suant to subsection (d) of section 17, and amendments thereto, have
en-
tered their appearances, waived notice and consented to the
appointment
of the suggested guardian or conservator, or both, in which case
the trial
may be held forthwith and without notice.
(c) Upon the filing of a petition as
provided for in section 12, and
amendments thereto, alleging that the proposed ward or proposed
con-
servatee is a person who has been previously adjudged as impaired
in
another state, the court shall issue an order fixing the date, time
and place
of the trial on the petition, which trial shall be held no earlier
than seven
days or later than 21 days after the date of the filing of the
petition, unless
those persons or agencies entitled to notice pursuant to subsection
(f) of
section 17, and amendments thereto, have entered their
appearances,
waived notice, agreed to the court's accepting jurisdiction of the
case if
transferred from the other state, and consented to the appointment
in
Kansas of the suggested guardian or conservator, or both, in which
case
the trial may be held forthwith and without notice.
(d) Upon the filing of a petition as
provided for in section 13, and
amendments thereto, alleging that the proposed conservatee is a
person
in need of an ancillary conservator and requesting the appointment
of an
ancillary conservator in Kansas, the court shall issue an order
fixing the
date, time and place of the trial on the petition, which trial
shall be held
no earlier than seven days or later than 21 days after the date of
the filing
of the petition, unless those persons or agencies entitled to
notice pur-
suant to subsection (e) of section 17, and amendments thereto, have
en-
tered their appearances, waived notice and consented to the
appointment
in Kansas of the suggested ancillary conservator, in which case the
trial
may be held forthwith and without notice.
New Sec. 15. (a) Upon the filing of
a petition as provided for in
section 9, and amendments thereto, alleging that the proposed ward
or
proposed conservatee is an adult with an impairment in need of a
guardian
or conservator, or both, or as provided for in section 11, and
amendments
thereto, alleging that the proposed ward or proposed conservatee is
a
minor with an impairment in need of a guardian or conservator, or
both,
the court shall order the proposed ward or proposed conservatee to
sub-
mit to an examination and evaluation to be conducted through a
general
hospital, psychiatric hospital, community mental health center,
commu-
nity developmental disability organization, or by a private
physician, psy-
chiatrist, psychologist or other professional appointed by the
court who
is qualified to evaluate the proposed ward's or proposed
conservatee's
alleged impairment. The order shall be served in the manner
provided
for in section 17, and amendments thereto, and may be served at
the
same time or after the notice provided for therein.
(b) Unless otherwise specified by the
court, the report of the exam-
ination and evaluation submitted to the court shall contain:
(1) The proposed ward's or proposed
conservatee's name, age and
date of birth;
(2) a description of the proposed ward's
or proposed conservatee's
physical and mental condition;
(3) a description of the nature and
extent of the proposed ward's or
proposed conservatee's cognitive and functional abilities and
limitations,
including adaptive behaviors and social skills, and, as
appropriate, edu-
cational and developmental potential;
(4) a prognosis for any improvement and,
as appropriate, any rec-
ommendation for treatment or rehabilitation;
(5) a list and description of any prior
assessments, evaluations or ex-
aminations of the proposed ward or proposed conservatee, including
the
dates thereof, which were relied upon in the preparation of this
evalua-
tion;
(6) the date and location where this
examination and evaluation oc-
curred, and the name or names of the professional or professionals
per-
forming the examination and evaluation and such professional's
qualifi-
cations;
(7) a statement by the professional that
the professional has person-
ally completed an independent examination and evaluation of the
pro-
posed ward or proposed conservatee, or by a professional on behalf
of
the professionals who have together completed an independent
exami-
nation and evaluation of the proposed ward or proposed conservatee
that
they have done so, and that the report submitted to the court
contains
the results of that examination and evaluation, and the
professional's or
professionals' opinion with regard to the issues of whether or not
the
proposed ward or proposed conservatee is an adult or a minor with
an
impairment who may be in need of a guardian or conservator, or
both,
and, if ascertainable, whether it would be injurious to the
proposed ward
or proposed conservatee to be required to be present at the trial
on the
petition, or whether the proposed ward or proposed conservatee
could
meaningfully participate in those proceedings; and
(8) the signature of the professional who
prepared the report.
(c) The professional shall file with the
court, at least five days prior
to the date of the trial, such professional's written report
concerning the
examination and evaluation ordered by the court. The report shall
be
made available by the court to counsel for all parties.
(d) In lieu of entering an order for an
examination and evaluation as
provided for herein, the court may determine that the report
accompa-
nying the petition as provided for in subsection (c) of section 9
or sub-
section (c) of section 11, and amendments thereto, is in compliance
with
the requirements of this section and that no further examination or
eval-
uation should be required, unless the proposed ward or proposed
con-
servatee, or such person's attorney, requests such an examination
and
evaluation in writing. Any such request shall be filed with the
court, and
a copy thereof delivered to the petitioner, at least four days
prior to the
date of the trial. Accompanying the request shall be a statement of
the
reasons why an examination and evaluation is requested and the
name
and address of a qualified professional or facility willing and
able to con-
duct this examination and evaluation. If the court orders a further
ex-
amination and evaluation, the court may continue the trial and fix
a new
date, time and place of the trial at a time not to exceed 30 days
from the
date of the filing of the request.
New Sec. 16. (a) Upon the filing of
a petition as provided for in
section 9, 10, 11, 12 or 13, and amendments thereto, or at any
time
thereafter until the trial provided for in section 18, and
amendments
thereto, the court may enter any of the following:
(1) An order for an investigation and
report concerning the proposed
ward's or proposed conservatee's family relationships, past
conduct, the
nature and extent of any property or income of the proposed ward
or
proposed conservatee; whether the proposed ward or proposed
conser-
vatee is likely to injure self or others, or other matters as the
court may
specify. If requested to do so by the court, the secretary of
social and
rehabilitation services shall conduct this investigation.
Otherwise, the
court may appoint any other person who is qualified to conduct this
in-
vestigation, and the costs of this investigation shall be assessed
as provided
for in section 45, and amendments thereto.
(2) Any orders requested or authorized
pursuant to section 24, and
amendments thereto.
(3) For good cause shown, an order of
continuance of the trial set
pursuant to section 14, and amendments thereto.
(4) For good cause shown, an order of
advancement of the trial set
pursuant to section 14, and amendments thereto.
(5) For good cause shown, an order
changing the place of the trial
set pursuant to section 14, and amendments thereto.
(6) A notice in the manner provided for
in section 17, and amend-
ments thereto.
(b) Upon the filing of a petition as
provided for in section 10, and
amendments thereto, alleging that the proposed ward or proposed
con-
servatee is a minor in need of a guardian or conservator, or both,
the
court may issue any of the following:
(1) An order of temporary custody of the
minor.
(2) An order requiring that the minor
appear at the time and place
of the trial set pursuant to subsection (b) of section 14, and
amendments
thereto. If an order to appear is entered, but is later rescinded,
the court
shall enter in the record of the proceedings the facts upon which
the
court found subsequent to the issuance of the order that the
presence of
the minor should be excused.
(3) An order appointing an attorney to
represent the minor. The court
shall give preference, in the appointment of the attorney, to any
attorney
who has represented the minor in other matters if the court has
knowl-
edge of that prior representation, or to an attorney whom the
minor, if
14 years of age or older, has requested. Any appointment made by
the
court shall terminate upon a final determination of the petition
and any
appeal therefrom, unless the court continues the appointment by
further
order. Thereafter, an attorney may be appointed by the court if
requested,
in writing, by the guardian, conservator or minor, if 14 years of
age or
older, or upon the court's own motion.
(4) A notice in the manner provided for
in section 17, and amend-
ments thereto.
(5) An order for a psychological or other
examination and evaluation
of the minor as may be specified by the court. The court may order
the
minor to submit to such an examination and evaluation to be
conducted
through a general hospital, psychiatric hospital, community mental
health
center, community developmental disability organization, or by a
private
physician, psychiatrist, psychologist or other person appointed by
the
court who is qualified to examine and evaluate the minor. The costs
of
this examination and evaluation shall be assessed as provided for
in section
45, and amendments thereto.
(c) Upon the filing of a petition as
provided for in section 11, and
amendments thereto, alleging that the proposed ward or proposed
con-
servatee is a minor with an impairment in need of a guardian or
conser-
vator, or both, the court may issue an order of temporary custody
of the
minor.
(d) Upon the filing of a petition as
provided for in section 12, and
amendments thereto, alleging that the proposed ward or proposed
con-
servatee is a person who has been previously adjudged as impaired
in
another state, the court may issue any of the following:
(1) An order appointing an attorney to
represent the proposed ward
or proposed conservatee. In making this appointment, the court
shall
consider the appointment of any attorney who has represented the
pro-
posed ward or proposed conservatee in other matters if the court
has
knowledge of that prior representation. Any appointment made by
the
court shall terminate upon a final determination of the petition
and any
appeal therefrom, unless the court continues the appointment by
further
order. Thereafter, an attorney may be appointed at any time if
requested,
in writing, by the ward, conservatee, guardian or conservator, or
upon the
court's own motion.
(2) An order requiring that the proposed
ward or proposed conser-
vatee appear at the time and place of the trial set pursuant to
subsection
(d) of section 14, and amendments thereto. If an order to appear is
en-
tered, but later rescinded, the court shall enter in the record of
the pro-
ceedings the facts upon which the court found subsequent to the
issuance
of the order that the presence of the proposed ward or proposed
conser-
vatee should be excused.
(3) An order for an examination and
evaluation of the proposed ward
or proposed conservatee as may be specified by the court. The court
may
order the proposed ward or proposed conservatee to submit to such
an
examination and evaluation to be conducted through a general
hospital,
psychiatric hospital, community mental health center, community
devel-
opmental disability organization, or by a private physician,
psychiatrist,
psychologist or other person appointed by the court who is
qualified to
examine and evaluate the proposed ward or proposed conservatee.
The
costs of this examination and evaluation shall be assessed as
provided for
in section 45, and amendments thereto.
(4) A notice in the manner provided for in
section 17, and amendments
thereto.
(e) Upon the filing of a petition as
provided for in section 13, and
amendments thereto, alleging that the proposed conservatee is a
person
in need of an ancillary conservator and requesting the appointment
of an
ancillary conservator in Kansas, the court may issue any of the
following:
(1) An order appointing an attorney to
represent the proposed con-
servatee. In making this appointment, the court shall consider the
ap-
pointment of any attorney who has represented the proposed
conservatee
in other matters if the court has knowledge of that prior
representation.
Any appointment made by the court shall terminate upon a final
deter-
mination of the petition and any appeal therefrom, unless the court
con-
tinues the appointment by further order. Thereafter, an attorney
may be
appointed at any time if requested, in writing, by the conservatee
or con-
servator, or upon the court's own motion.
(2) A notice in the manner provided for in
section 17, and amendments
thereto.
New Sec. 17. (a) The notice
required by subsection (a)(5) of section
14, and amendments thereto, and any notice which the court may
require
pursuant to section 16, and amendments thereto, shall state:
(1) That a petition has been filed
alleging that the proposed ward or
proposed conservatee is either an adult with an impairment in need
of a
guardian or conservator, or both, or a minor in need of a guardian
or
conservator, or both, or a minor with an impairment in need of a
guardian
or conservator, or both, or a person who has been previously
adjudged as
impaired in another state, or a person in need of an ancillary
conservator,
and requesting the appointment of a guardian or a conservator, or
both,
or an ancillary conservator in this state;
(2) the date, time and place when the
trial upon the petition shall be
held;
(3) whether the proposed ward or proposed
conservatee has been
ordered to appear at this trial, or whether the court has made any
finding
which excuses the presence of the proposed ward or proposed
conser-
vatee at the trial;
(4) whether any attorney has been
appointed by the court to repre-
sent the proposed ward or proposed conservatee, and if so, the name
of
that attorney and the date, time and place where the proposed ward
or
proposed conservatee shall have the opportunity to consult with
that at-
torney;
(5) whether the court has entered any
order appointing a temporary
guardian or a temporary conservator, or both, or a temporary
ancillary
conservator, and if so, the name and address of this individual or
corpo-
ration;
(6) that if the court has appointed a
temporary guardian or a tem-
porary conservator, or both, or a temporary ancillary conservator,
that the
proposed ward or proposed conservatee, or certain others, may
request
a hearing upon that appointment if that request is made in writing
and
filed with the court not later than the third day following the
entry of the
ex parte order appointing a temporary guardian or temporary
conservator,
or both, or a temporary ancillary conservator, or of the service of
that
order upon the proposed ward or proposed conservatee, if later;
(7) the name and address of the
individual or corporation whom the
petitioner has suggested that the court appoint as the guardian or
the
conservator, or both, or as the ancillary conservator;
(8) that the proposed ward or proposed
conservatee, if alleged to be
an adult with an impairment in need of a guardian or a conservator,
or
both, has a right to demand a jury trial by filing a written
request for such
with the court at least four days prior to the date of the trial;
and
(9) that if the proposed ward or proposed
conservatee demands a jury
trial, that the trial may have to be continued by the court for a
reasonable
time in order to empanel a jury, but that this continuance will not
exceed
30 days from the date of the filing of the demand.
(b) The court may order any of the
following persons to serve the
notice upon the proposed ward or proposed conservatee:
(1) The petitioner or the attorney for
the petitioner;
(2) the attorney appointed by the court
to represent the proposed
ward or proposed conservatee;
(3) any law enforcement officer; or
(4) any other person whom the court finds
to be a proper person to
serve this notice.
(c) If the proposed ward or proposed
conservatee is alleged to be an
adult with an impairment in need of a guardian or conservator, or
both:
(1) This notice shall be personally
served on the proposed ward or
proposed conservatee as soon as possible, but in no case later than
10
days prior to the date of the trial and immediate return thereof
shall be
made to the court by the person serving this notice. If the
proposed ward
or proposed conservatee cannot be personally served with this
notice
within Kansas, the court shall direct how this notice shall be
served upon
the proposed ward or proposed conservatee.
(2) This notice shall be served on the
attorney of the proposed ward
or proposed conservatee as soon as possible, but in no case later
than 10
days prior to the date of the trial and immediate return thereof
shall be
made to the court by the person serving this notice.
(3) The court may order that a copy of
this notice shall be served on
such other persons as the court determines and in such manner as
the
court directs.
(d) If the proposed ward or proposed
conservatee is alleged to be a
minor in need of a guardian or conservator, or both, or a minor
with an
impairment in need of a guardian or conservator, or both:
(1) This notice shall be served on the
attorney appointed by the court
to represent the minor, if one has been appointed, and on those
persons
and agencies, if any, required to be named by the petitioner
pursuant to
either subsection (b)(6) of section 10, and amendments thereto, or
sub-
section (b)(6) of section 11, and amendments thereto, as soon as
possible,
but in no case later than 10 days prior to the date of the trial
and im-
mediate return thereof shall be made to the court by the person
serving
this notice.
(2) The court may order that a copy of
this notice shall be served on
such other persons, including the minor, as the court determines
and in
such manner as the court directs.
(e) If the proposed ward or proposed
conservatee is alleged to be a
person who has been previously adjudged as impaired in another
state:
(1) This notice shall be served on the
attorney appointed by the court
to represent the proposed ward or proposed conservatee, if one has
been
appointed, and on those persons and agencies, if any, required to
be
named by the petitioner pursuant to subsections (b)(6) and (b)(7)
of sec-
tion 12, and amendments thereto, as soon as possible, but in no
case later
than 10 days prior to the date of the trial and immediate return
thereof
shall be made to the court by the person serving this notice.
(2) The court may order that a copy of
this notice shall be served on
such other persons, including the proposed ward or proposed
conserva-
tee, as the court determines and in such manner as the court
directs.
(f) If the proposed conservatee is
alleged to be a person in need of
an ancillary conservator:
(1) This notice shall be served on the
attorney appointed by the court
to represent the proposed conservatee, if one has been appointed,
and
on those persons and agencies, if any, required to be named by the
pe-
titioner pursuant to subsections (b)(5) and (b)(6) of section 13,
and
amendments thereto as soon as possible, but in no case later than
10 days
prior to the date of the trial and immediate return thereof shall
be made
to the court by the person serving this notice.
(2) The court may order that a copy of
this notice shall be served on
such other persons, including the proposed conservatee, as the
court de-
termines and in such manner as the court directs.
(g) If the proposed ward or proposed
conservatee is a patient in any
psychiatric hospital, this notice also shall be served on the head
of that
hospital.
New Sec. 18. (a) The trial upon a
petition filed pursuant to section
9, 10, 11, 12 or 13, and amendments thereto, shall be held at the
time
and place specified in the court's order entered pursuant to
section 14,
and amendments thereto, unless an order of advancement,
continuance
or change of place has been issued pursuant to section 16, and
amend-
ments thereto, and may be consolidated with the trial provided for
in the
care and treatment act for mentally ill persons, K.S.A. 2001 Supp.
59-
2945 et seq., and amendments thereto, or the care and
treatment act for
persons with an alcohol or substance abuse problem, K.S.A. 2001
Supp.
59-29b45, and amendments thereto, if the petition also incorporates
the
allegations required by, and is filed in compliance with, the
provisions of
either of those acts.
(b) If the petition alleges that the
proposed ward or proposed con-
servatee is an adult with an impairment in need of a guardian or
conser-
vator, or both, the trial may be held to a jury if, at least four
days prior
to the date of the trial, a written demand for jury trial is filed
with the
court by the proposed ward or proposed conservatee. In all other
cases,
the trial shall be held to the court.
(c) The jury, if one is demanded, shall
consist of six persons and shall
be selected as provided by law. Notwithstanding any provision of
K.S.A.
43-166, and amendments thereto, to the contrary, a panel of
prospective
jurors may be assembled by the clerk upon less than 20 days notice
in
this circumstance. From this panel, 12 qualified jurors who have
been
passed for cause shall be empaneled. Prior service as a juror in
any other
court shall not exempt, for that reason alone, any person from jury
service
hereunder. From the panel so obtained, the proposed ward or
proposed
conservatee, or the attorney for the proposed ward or proposed
conser-
vatee, shall strike one name; then the petitioner, or the
petitioner's at-
torney, shall strike one name; and so on alternatively until each
has
stricken three names so as to reach the jury of six persons. During
this
process, if either party neglects or refuses to aid in striking the
names,
the court shall strike a name on behalf of such party.
(d) The petitioner and the proposed ward
or proposed conservatee
shall each be afforded an opportunity to appear at the trial, to
testify and
to present and cross-examine witnesses. If the trial has been
consolidated
with a trial being held pursuant to either the care and treatment
act for
mentally ill persons or the care and treatment act for persons with
an
alcohol or substance abuse problem persons not necessary for the
conduct
of the proceedings may be excluded as provided for in those acts.
The
trial shall be conducted in as informal a manner as may be
consistent with
orderly procedure. The court shall have the authority to receive
all rele-
vant and material evidence which may be offered, including the
testimony
or written report, findings or recommendations of any professional
or
other person who has examined or evaluated the proposed ward or
pro-
posed conservatee and the testimony and written findings and
recom-
mendations of the secretary of social and rehabilitation services
or any
other person appointed by the court to conduct an investigation
pursuant
to section 16, and amendments thereto. Such evidence shall not be
priv-
ileged for the purpose of this trial.
(e) Upon completion of the trial:
(1) If the court finds by clear and
convincing evidence that the pro-
posed ward or proposed conservatee is an adult with an impairment
in
need of a guardian or a conservator, or both, or a minor in need of
a
guardian or a conservator, or both, or a minor with an impairment
in need
of a guardian or a conservator, or both, or a person who has been
previ-
ously adjudged as impaired in another state, the court, pursuant to
section
19, and amendments thereto, shall appoint a qualified and suitable
indi-
vidual or corporation as the guardian or conservator, or both, and
shall
specify what duties, responsibilities, powers and authorities as
provided
for in section 26, 27, 28, 29 or 30, and amendments thereto, the
guardian
or conservator shall have. If the court appoints co-guardians or
co-con-
servators, or both, the court shall specify whether such
co-guardians or
co-conservators, or both, shall have the authority to act
independently, to
act only in concert, or under what circumstances or with regard to
what
matter they may act independently and when they may act only in
concert.
(2) If a jury has been demanded in the
case of an adult and the jury
finds by clear and convincing evidence that the proposed ward or
pro-
posed conservatee is unable to meet essential needs for physical
health,
safety or welfare, or is unable to manage such person's estate,
then the
court shall determine if the proposed ward or proposed conservatee
is in
need of a guardian or a conservator, or both, and if so, the court,
pursuant
to section 19, and amendments thereto, shall appoint a qualified
and
suitable individual or corporation as the guardian or conservator,
or both,
and shall specify what duties, responsibilities, powers and
authorities as
provided for in section 26, 27, 28, 29 or 30, and amendments
thereto, the
guardian or conservator shall have. If the court appoints
co-guardians or
co-conservators, or both, the court shall specify whether such
co-guard-
ians or co-conservators, or both, shall have the authority to act
indepen-
dently or whether they shall be required to act only in
concert.
(3) If the court finds by clear and
convincing evidence that the pro-
posed conservatee is a person in need of an ancillary conservator,
the
court, pursuant to section 19, and amendments thereto, shall
appoint a
qualified and suitable individual or corporation as the ancillary
conser-
vator, and shall specify what duties, responsibilities, powers and
author-
ities as provided for in section 29 or 30, and amendments thereto,
the
ancillary conservator shall have. If the court appoints
co-ancillary conser-
vators, the court shall specify whether such co-ancillary
conservators shall
have the authority to act independently or whether they shall be
required
to act only in concert.
(f) If the court does not find by clear
and convincing evidence that
the proposed ward or proposed conservatee is an adult with an
impair-
ment in need of a guardian or a conservator, or both, or a minor in
need
of a guardian or a conservator, or both, or a minor with an
impairment
in need of a guardian or a conservator, or both, or a person who
has been
previously adjudged as impaired in another state, or a person in
need of
an ancillary conservator, or does not find that the proposed ward
or pro-
posed conservatee is in need of a guardian or a conservator, even
though
the jury has determined that the proposed ward or proposed
conservatee
is unable to meet essential needs for physical health, safety or
welfare, or
is unable to manage such person's estate, because other appropriate
al-
ternatives exist and are sufficient to meet those needs of the
proposed
ward or proposed conservatee, then the court shall deny the
requested
appointments.
New Sec. 19. (a) The court in
appointing a guardian or conservator
shall give priority in the following order to:
(1) The nominee of the proposed ward or
proposed conservatee, if
such nomination is made within any durable power of attorney;
(2) the nominee of a natural
guardian;
(3) the nominee of a minor who is the
proposed ward or proposed
conservatee, if the minor is over 14 years of age;
(4) the nominee of the spouse, adult
child or other close family mem-
ber of the proposed ward or proposed conservatee; or
(5) the nominee of the petitioner.
(b) The court, in appointing a guardian
or conservator, shall consider
the workload, capabilities and potential conflicts of interest of
the pro-
posed guardian or conservator, or both, before making such
appointment,
and the court shall give particular attention in making such
appointment
to the number of other cases in which the proposed guardian or
conser-
vator, other than a corporation, is currently serving as guardian
or con-
servator, or both, particularly if that number is more than 15 or
more
wards or conservatees, or both.
(c) In appointing a guardian for a person
who is an adherent of a
religion whose tenets and practices call for reliance on prayer
alone for
healing, the court shall consider, but shall not be limited to, the
appoint-
ment of an individual as guardian who is sympathetic to and willing
to
support this system of healing.
New Sec. 20. (a) When the court
appoints an individual or a corpo-
ration as a guardian, the court shall require that the individual
or a rep-
resentative on behalf of the corporation file with the court an
oath or
affirmation as required by K.S.A. 59-1702, and amendments
thereto.
(b) When the court appoints an individual
or a corporation as a con-
servator, except as provided for in subsections (c), (d) or (e), or
in section
6, and amendments thereto, the court shall require that the
individual or
a representative on behalf of the corporation file with the court a
bond
in the amount of 125% of the combined value of the tangible and
intan-
gible personal property in the conservatee's estate and the total
of any
annual income from any source which the conservator may be
expected
to receive on behalf of the conservatee, minus any reasonably
expected
expenses, conditioned upon the faithful discharge of all the duties
of the
conservator's trust according to law, and with sufficient sureties
as the
court may determine necessary or appropriate.
(c) When the court appoints an individual
or a corporation as a con-
servator pursuant to a request for a voluntary conservatorship as
provided
for in section 7, and amendments thereto, and the person for whom
the
voluntary conservatorship is established has requested that the
individual
or corporation appointed not be required to file a bond, the court
may
waive the filing of a bond; provided that the court may later
require the
filing of a bond if circumstances so require.
(d) If, at the time of the appointment of
a conservator, there is no
property in the possession of the conservatee requiring a
conservatorship,
but the court finds that there is likely to be such at some point
in time,
the court may waive the filing of a bond and order that the
conservator
shall immediately file a report with the court upon either the
conservator
coming into possession of any property of the conservatee, or if
the con-
servatee becomes entitled to receive any property which the
conservator
believes should be placed within the conservatorship. Upon the
filing of
such a report, the court, following any hearing the court may
determine
appropriate, may require the conservator to file a bond as provided
for
herein.
(e) If the conservator appointed is the
individual or corporation sug-
gested by a testator or settlor as provided for in section 5, and
amend-
ments thereto, and the testator or settlor has provided by will or
trust
that no bond should be required of such conservator, the court may
waive
the filing of a bond; provided that the court may later require the
filing
of a bond if circumstances so require.
(f) If the conservator is a bank having
trust authority or a trust com-
pany organized and having its principal place of business within
the state
of Kansas, the court may waive the filing of a bond.
(g) If the conservator appointed is under
contract with the Kansas
guardianship program, the department of social and rehabilitation
serv-
ices shall act as surety on the bond. The court shall order that a
certified
copy of the order appointing a conservator who is under contract
with
the Kansas guardianship program be sent to the director of the
Kansas
guardianship program.
(h) If the individual appointed as the
guardian or as the conservator,
or both, resides outside of Kansas, the court shall require that
person,
and in the case of a corporation being appointed as the guardian or
the
conservator, or both, the court shall require a representative of
the cor-
poration, to appoint, in writing, a resident agent pursuant to
K.S.A. 59-
1706, and amendments thereto.
(i) Upon the filing of the required oath
or bond, and appointment
and consent of a resident agent, the court shall issue letters of
guardi-
anship to the guardian or letters of conservatorship to the
conservator, or
both. The court may order that a certified copy of these letters be
sent
to such persons or agencies as the court specifies.
New Sec. 21. (a) Any corporation
organized under the Kansas gen-
eral corporation code may act as guardian for an individual found
to be
in need of a guardian under the act for obtaining a guardian or
conser-
vator, or both, if the corporation has been certified by the
secretary of
social and rehabilitation services as a suitable agency to perform
the duties
of a guardian.
(b) The secretary of social and
rehabilitation services shall establish
criteria for determining whether a corporation should be certified
as a
suitable agency to perform the duties of a guardian. The criteria
shall be
designed for the protection of the ward and shall include, but not
be
limited to, the following:
(1) Whether the corporation is capable of
performing the duties of a
guardian;
(2) whether the staff of the corporation
is accessible and available to
wards and to other persons concerned about their well-being and is
ad-
equate in number to properly perform the duties and
responsibilities of
a guardian;
(3) whether the corporation is a stable
organization which is likely to
continue in existence for some time; and
(4) whether the corporation will agree to
submit such reports and
answer such questions as the secretary may require in monitoring
cor-
porate guardianships.
(c) Application for certification under
this section shall be made to
the secretary of social and rehabilitation services in such manner
as the
secretary may direct. The secretary of social and rehabilitation
services
may suspend or revoke certification of a corporation under this
section,
after notice and hearing, upon a finding that such corporation has
failed
to comply with the criteria established by rules and regulations
under
subsection (b). Such corporation shall not be appointed as a
guardian
during the period of time the certificate is suspended or
revoked.
(d) No corporation shall be eligible for
appointment as provided for
in section 19, and amendments thereto, as the guardian of any
person if
such corporation provides care, treatment or housing to that person
or is
the owner, part owner or operator of any adult care home, lodging
estab-
lishment or institution utilized for the care, treatment or housing
of that
person.
(e) The secretary of social and
rehabilitation services may adopt rules
and regulations necessary to administer the provisions of this
section.
New Sec. 22. (a) At any time after
the filing of the petition provided
for in section 9, 10, 11 or 12, and amendments thereto, but prior
to the
trial thereon, the court, upon the written request of the proposed
ward
or proposed conservatee, or upon the court's own motion, may issue
an
order of referral for trial to the district court of:
(1) The county of residence of the
proposed ward or proposed con-
servatee;
(2) the county wherein the proposed ward
or proposed conservatee
may be found; or
(3) any other county, if the referral has
been requested by the pro-
posed ward or proposed conservatee and the court finds that the
proposed
ward or proposed conservatee cannot obtain a fair trial
otherwise.
(b) If the petition filed pursuant to
section 9, 10, 11 or 12, and amend-
ments thereto, is filed in a county in which the proposed ward or
proposed
conservatee is found because the proposed ward or proposed
conservatee
is confined to a psychiatric hospital, the court may not issue an
order of
referral for trial pursuant to this section unless the proposed
ward or
proposed conservatee has requested or consented to this
referral.
(c) When any order of referral for trial
has been issued pursuant to
this section, the court shall transmit to the district court to
which the
referral has been made a certified copy of all pleadings and orders
in the
case.
(d) Upon receipt of an order of referral
for trial and certified copies
of the pleadings and orders in the case, the district court to
which a
referral has been made shall cause notice of the referral for trial
to be
given to all persons entitled to notice pursuant to section 17, and
amend-
ments thereto, and shall thereafter proceed in the case as if the
petition
had been originally filed therein, except that if the original
court having
venue has previously set the matter for trial pursuant to section
14, and
amendments thereto, but the court to which the order of referral
for trial
has been made cannot conduct the trial at that time because notice
of a
change of location of the trial cannot be served on any interested
party
at least 48 hours prior to the trial, or because of scheduling
conflicts, then
the court to which the matter has been transferred for trial may
set a new
date and time for the trial at a time not to exceed 21 days from
the
issuance of the order of referral for trial, and shall cause notice
thereof
to be given as provided for in section 17, and amendments
thereto.
(e) At the conclusion of the trial held
pursuant to section 18, and
amendments thereto, the court to which the matter has been
referred
for trial shall determine the issues as provided for in subsection
(d) of
section 18, and amendments thereto, and may deny the request
contained
in the petition as the findings of the court require, but shall not
appoint
a guardian or a conservator even if the need for such has been
shown. In
such case, the court shall transmit the findings of the court
following the
trial, along with any statement of the costs incurred, and a
certified copy
of all pleadings filed and orders entered during the course of the
referral
and trial, to the original court having venue.
(f) Upon receipt of such findings,
pleadings and orders, the original
court having venue shall proceed as provided for under this act,
and may
appoint the guardian or conservator, or both.
New Sec. 23. (a) At any time after
the trial and appointment of a
guardian or conservator as provided for in section 18, and
amendments
thereto, and upon the written request of the guardian or
conservator, or
upon the court's own motion, and after notice to any persons as the
court
may direct, the court may transfer venue to another district court
for
good cause shown. In such case, the transferring court shall
transmit to
the court to which venue is being transferred a certified copy of
all plead-
ings and orders in the case.
(b) Any district court to which venue is
transferred shall proceed in
the case as if the petition and all proceedings to that point had
originally
been filed or occurred therein. In the event that, due to the
transfer of
venue, notice of a change of location of a hearing previously
scheduled is
required, but cannot be served on any interested party at least 48
hours
prior to the hearing, or if any hearing previously scheduled by the
trans-
ferring court cannot be held as scheduled by the receiving court
because
of scheduling conflicts, then the receiving court may continue the
hearing
for up to seven full working days to allow adequate time for notice
to be
given and the hearing to be held.
New Sec. 24. (a) At any time after
the filing of the petition provided
for in section 9, 10, 11, 12 or 13, and amendments thereto, but
prior to
the trial provided for in section 18, and amendments thereto, if it
appears
that there may be an imminent danger to the physical health or
safety of
the proposed ward requiring immediate action to be taken to protect
the
proposed ward, or that there may be an imminent danger that the
estate
of the proposed conservatee will be significantly depleted unless
imme-
diate action is taken to protect the estate, or both, any person
may file in
addition to that original petition, or as a part thereof, a
verified petition
requesting the appointment of a temporary guardian or a temporary
con-
servator, or both, except if the petition alleges that the proposed
conser-
vatee is a person in need of an ancillary conservator, and requests
the
appointment of an ancillary conservator in Kansas, in which case
the pe-
tition may request the appointment of a temporary ancillary
conservator.
The petition shall include:
(1) The petitioner's name and
address;
(2) the proposed ward's or proposed
conservatee's name, age, date
of birth, address of permanent residence, and present address or
where-
abouts, if different from the proposed ward's or proposed
conservatee's
permanent residence;
(3) a statement that it is the
petitioner's belief that there is an im-
minent danger to the physical health or safety of the proposed ward
re-
quiring immediate action to be taken to protect the proposed ward,
or
that there is an imminent danger that the estate of the proposed
conser-
vatee will be significantly depleted unless immediate action is
taken to
protect the estate, or both;
(4) the factual basis upon which the
petitioner alleges this imminent
danger;
(5) the names and addresses of witnesses
by whom the truth of this
petition may be proved;
(6) the name, address and relationship to
the proposed ward or pro-
posed conservatee, if any, of the individual or corporation whom
the pe-
titioner suggests that the court appoint as the temporary guardian
or tem-
porary conservator, or both, and if the proposed temporary guardian
or
temporary conservator is under contract with the Kansas
guardianship
program, that fact; and
(7) a request that the court make an ex
parte determination that there
exists such imminent danger, and that the court appoint a
temporary
guardian or a temporary conservator, or both, with such powers as
the
court deems necessary to protect the proposed ward or the estate of
the
proposed conservatee.
(b) (1) If the court determines
that there is good cause to believe
that the proposed ward or proposed conservatee is an adult with an
im-
pairment in need of a guardian or a conservator, or both, or is a
minor in
need of a guardian or a conservator, or both, or is a minor with an
im-
pairment in need of a guardian or a conservator, or both, or is a
person
who has been previously adjudged as impaired in another state, or
is a
person in need of an ancillary conservator, as alleged in the
original pe-
tition, and that there exists an imminent danger to the physical
health or
safety of the proposed ward, or that there exists an imminent
danger that
the estate of the proposed conservatee will be significantly
depleted, the
court may enter an ex parte emergency order appointing a
temporary
guardian or a temporary conservator, or both.
(2) The court shall specify what powers
and duties as provided for in
section 26, 27, 28, 29, 30 or 31, and amendments thereto, the
temporary
guardian or temporary conservator shall have. The court may further
au-
thorize the temporary guardian or temporary conservator to seek
appro-
priate injunctive or other immediate relief from any appropriate
court or
other authority.
(3) Subject to the provisions of
subsection (g), the court shall specify
within its order when the authority of the temporary guardian or
tem-
porary conservator, or both, shall expire, but in no case shall the
court
specify a date beyond 30 days following the issuance of the order.
The
court may issue successive orders extending the authority of a
temporary
guardian or temporary conservator, or both, only upon the filing of
a
written request for such, and following a hearing held similarly as
pro-
vided for in subsection (e) to determine the need for and
appropriateness
of any such extension.
(4) The court shall order that a copy of
any order issued pursuant to
this subsection be promptly served upon the proposed ward or
proposed
conservatee, the attorney for the proposed ward or proposed
conservatee,
the spouse of the proposed ward or proposed conservatee, and in the
case
of a minor, the natural guardian of the minor, along with notice.
Such
notice shall specify the rights of the proposed ward or proposed
conser-
vatee, and of others, consistent with the provisions of subsection
(c).
(c) If the court enters an ex parte order
appointing a temporary
guardian or a temporary conservator, or both, the proposed ward or
pro-
posed conservatee, the attorney for the proposed ward or proposed
con-
servatee, the spouse of the proposed ward or proposed conservatee,
or
in the case of a minor, the natural guardian of the minor, may
request a
hearing on the matter if a written request for such is filed with
the court
not later than the third day following the entry of the ex parte
order, or
of service of the ex parte order upon the proposed ward or
proposed
conservatee, if later. Upon receipt of such a request, the court
shall fix
the time and place for a hearing upon the request, which hearing
shall
be held not later than the second day following the filing of the
request,
excluding any Saturday, Sunday or legal holiday, and shall direct
how and
to whom notice of such hearing shall be given.
(d) In lieu of entering an ex parte
emergency order of appointment
of a temporary guardian or a temporary conservator, or both, the
court
may deny the relief requested or set the time and place for a
hearing to
be held on the request for the appointment of a temporary guardian
or
a temporary conservator, or both, which hearing shall be held not
later
than the second day following the filing of the petition, excluding
any
Saturday, Sunday or legal holiday. The court may direct that
notice
thereof be given to the petitioner, the original petitioner, if
different, the
proposed ward or proposed conservatee, the spouse of the proposed
ward
or proposed conservatee, in the case of a minor, the natural
guardian of
the minor, and such other persons as the court determines
appropriate.
The court shall determine by whom and in what manner such notice
shall
be given. The court may enter an order requiring that the proposed
ward
or proposed conservatee appear at the time and place of the
hearing
unless the court makes a finding prior to the hearing that the
presence
of the proposed ward or proposed conservatee will be injurious to
the
person's health or welfare, or that the proposed ward's or proposed
con-
servatee's impairment is such that the person could not participate
in the
proceedings, or that the proposed ward or proposed conservatee has
filed
with the court a written waiver of such person's right to appear in
person.
In any such case, the court shall enter in the record of the
proceedings
the facts upon which the court has found that the presence of the
pro-
posed ward or proposed conservatee at the hearing should be
excused.
(e) Any hearing held pursuant to
subsection (b)(3), (c) or (d) shall be
conducted in as informal a manner as may be consistent with
orderly
procedure. The rules governing evidentiary and procedural matters
shall
be applied in a manner so as to facilitate informal, efficient
presentation
of all relevant, probative evidence and resolution of the issues
with due
regard for the interests of all parties.
(f) If after any hearing held pursuant to
subsection (c) or (d) the court
determines that there is good cause to believe that the proposed
ward or
proposed conservatee is an adult with an impairment in need of a
guardian
or a conservator, or both, or a minor in need of a guardian or a
conser-
vator, or both, or a minor with an impairment in need of a guardian
or a
conservator, or both, or a person who has been previously adjudged
as
impaired in another state, or a person in need of an ancillary
conservator,
as alleged in the original petition, and that there exists an
imminent dan-
ger to the physical health or safety of the proposed ward, or that
there
exists an imminent danger that the estate of the proposed
conservatee
will be significantly depleted, the court may appoint, or continue
the
appointment of, a temporary guardian or a temporary conservator,
or
both, and the court shall specify what duties, responsibilities,
powers and
authorities as provided for in section 26, 27, 28, 29 or 30, and
amendments
thereto, the temporary guardian or temporary conservator shall
have. The
court may further authorize the temporary guardian or temporary
con-
servator to seek appropriate injunctive or other immediate relief
from any
appropriate court or other authority. Otherwise, if the court
determines
that there is good cause to believe that the proposed ward or
proposed
conservatee is an adult with an impairment in need of a guardian or
a
conservator, or both, or a minor in need of a guardian or a
conservator,
or both, or a minor with an impairment in need of a guardian or a
con-
servator, or both, or a person who has been previously adjudged as
im-
paired in another state, or a person in need of an ancillary
conservator,
as alleged in the original petition, but that there is not good
cause to
believe that there exists an imminent danger to the physical health
or
safety of the proposed ward, or that there exists an imminent
danger that
the estate of the proposed conservatee will be significantly
depleted, the
court shall deny the request for the appointment of a temporary
guardian
or a temporary conservator, or both, or shall terminate the earlier
ap-
pointment of the temporary guardian or temporary conservator, or
both,
but shall continue the matter to trial on the original petition
provided for
in section 18, and amendments thereto.
(g) The appointment and authority of any
temporary guardian or tem-
porary conservator shall expire at the conclusion of the trial
provided for
in section 18, and amendments thereto, if the petition is denied,
or upon
the issuance of appropriate letters to any guardian or conservator
ap-
pointed by the court at the conclusion of the trial, or as
otherwise ordered
by the court, but such expiration shall not affect the validity of
any action
taken pursuant to the authority of the temporary guardian or
temporary
conservator during the time of such person's appointment. The
temporary
guardian or temporary conservator shall be required to provide an
ac-
counting as directed by the court.
(h) If, after any hearing held pursuant
to subsection (c) or (d), the
court finds that there has not been shown sufficient evidence to
cause
the court to believe that the proposed ward or proposed conservatee
is
an adult with an impairment in need of a guardian or a conservator,
or
both, or a minor in need of a guardian or a conservator, or both,
or a
minor with an impairment in need of a guardian or a conservator, or
both,
or a person who has been previously adjudged as impaired in
another
state, or a person in need of an ancillary conservator, as alleged
in the
original petition, the court shall dismiss the petition requesting
the ap-
pointment of a temporary guardian or a temporary conservator, or
both,
and may dismiss the original petition.
New Sec. 25. (a) Any person may
file at any time after the filing of
the petition provided for in section 9, 10, 11 or 12, and
amendments
thereto, in addition to that original petition, or as a part
thereof, or at any
time after the appointment of a guardian or a conservator as
provided for
in section 18, and amendments thereto, a verified petition
requesting the
appointment of a standby guardian or a standby conservator, or
both. The
petition shall include:
(1) The petitioner's name and address,
and if the petitioner is the
ward's or conservatee's court appointed guardian or conservator,
that fact;
(2) the proposed ward's, ward's, proposed
conservatee's or conser-
vatee's name, age, date of birth, address of permanent residence,
and
present address or whereabouts, if different from the proposed
ward's,
ward's, proposed conservatee's or conservatee's permanent
residence;
(3) the name and address of the ward's or
conservatee's court ap-
pointed guardian or conservator, if different from the
petitioner;
(4) the factual basis upon which the
petitioner alleges the need for a
standby guardian or standby conservator, or both, or that it would
be in
the best interests of the proposed ward, ward, proposed conservatee
or
conservatee to have the court appoint a standby guardian or standby
con-
servator, or both;
(5) the names and addresses of witnesses
by whom the truth of this
petition may be proved;
(6) the name, address and relationship to
the proposed ward, ward,
proposed conservatee or conservatee, if any, of the individual or
corpo-
ration whom the petitioner suggests that the court appoint as the
standby
guardian or standby conservator, and if the suggested standby
guardian
or conservator is under contract with the Kansas guardianship
program,
that fact; and
(7) a request that the court make a
determination that there is a need
for the court to appoint a standby guardian or a standby
conservator, or
both, or that it would be in the best interests of the proposed
ward, ward,
proposed conservatee or conservatee for the court to appoint a
standby
guardian or standby conservator, or both, and that the court make
such
appointment.
(b) When the court appoints either an
individual or a corporation as
a guardian or a conservator, or both, the court may appoint an
additional
individual or corporation as the standby guardian or standby
conservator,
or both. Such standby guardian or conservator shall be selected in
ac-
cordance with the provisions of section 19, and amendments
thereto.
(c) If the court appoints a standby
guardian, the court shall require
that the individual or a representative on behalf of the
corporation file
with the court an oath or affirmation as required by K.S.A.
59-1702, and
amendments thereto, and upon the filing of such oath or
affirmation, the
court may issue letters of authority to the standby guardian.
(d) If the court appoints a standby
conservator, the court shall require
that the individual or a representative on behalf of the
corporation file
with the court a bond in such amount and with such surety as the
court
shall specify, and upon the filing of such bond, if required, the
court may
issue letters of authority to the standby conservator.
(e) A standby guardian shall have the
authority and responsibility to
assume the duties, responsibilities, powers and authorities
assigned to the
guardian upon the temporary absence or impairment of the guardian,
or
the resignation or death of the guardian. Within 10 days of such
assump-
tion, the standby guardian shall file with the court a written
notice of that
fact and a written report of the circumstances which caused the
standby
guardian to have assumed those duties, responsibilities, powers and
au-
thorities. The report shall specify whether such assumption is
intended
to be only temporary and the date by which it is expected that the
guard-
ian shall be able to reassume such duties, responsibilities, powers
and
authorities, or that the guardian is thought to be permanently
unable to
reassume such duties, responsibilities, powers and authorities.
This notice
and report may be accompanied by or include a petition pursuant
to
section 39, and amendments thereto, requesting the appointment of
a
successor guardian.
(f) A standby conservator shall have the
authority and responsibility
to assume the duties, responsibilities, powers and authorities
assigned to
the conservator upon the temporary absence or impairment of the
con-
servator, or the resignation or death of the conservator, only if
the standby
conservator shall file with the court a written notice of temporary
absence,
impairment, resignation or death of the conservator. The notice
shall
specify if the absence or impairment of the conservator is expected
to be
only temporary, the date by which it is expected that the
conservator shall
be able to reassume such duties, responsibilities, powers and
authorities,
and the reasons why the standby conservator believes it is
necessary for
the standby conservator to assume the duties, responsibilities,
powers and
authorities of the conservator. Otherwise, the notice shall advise
the court
that proceedings pursuant to section 39, and amendments thereto,
to
appoint a successor conservator are required, or the notice may be
ac-
companied by or include a petition requesting the appointment of a
suc-
cessor conservator. Upon receipt of such notice, the court may
specify a
bond that the standby conservator shall file with the court before
assum-
ing such duties, responsibilities, powers and authorities, or may
authorize
the standby conservator to assume such of the conservator's duties,
re-
sponsibilities, powers and authorities as the court shall
specify.
(g) Upon receipt of a notice as provided
for in subsection (e) or (f),
the court may set a hearing to review the circumstances of the ward
or
conservatee as provided for in section 35 or 36, and amendments
thereto,
or may otherwise proceed pursuant to section 39, and amendments
thereto, to remove the guardian or conservator, or both, and to
appoint
a successor guardian or conservator, or both.
(h) If before proceedings pursuant to
section 39, and amendments
thereto, to remove the guardian or conservator, or both, or to
appoint a
successor guardian or conservator, or both, have been commenced,
the
guardian or conservator is able to reassume the duties,
responsibilities,
powers and authorities of such appointment, the guardian or
conservator,
or both, shall so notify the court, in writing, of that
reassumption and
appropriately shall report to the court within the next scheduled
report
or accounting as required pursuant to section 34, and
amendments
thereto. Such report or accounting may include or attach a report
or
accounting of the standby guardian or standby conservator.
New Sec. 26. (a) (1) The individual
or corporation appointed by the
court to serve as the guardian shall carry out diligently and in
good faith,
the general duties and responsibilities, and shall have the general
powers
and authorities, provided for in this section as well as any
specific duties,
responsibilities, powers and authorities assigned to the guardian
by the
court. In doing so, a guardian shall at all times be subject to the
control
and direction of the court, and shall act in accordance with the
provisions
of any guardianship plan filed with the court pursuant to section
27, and
amendments thereto. The court shall have the authority to appoint
coun-
sel for the guardian, and the fees of such attorney may be assessed
as
costs pursuant to section 45, and amendments thereto.
(2) A guardian shall become and remain
personally acquainted with
the ward, the spouse of the ward and with other interested persons
as-
sociated with the ward and who are knowledgeable about the ward,
the
ward's needs and the ward's responsibilities. A guardian shall
exercise
authority only as necessitated by the ward's limitations. A
guardian shall
encourage the ward to participate in making decisions affecting the
ward.
A guardian shall encourage the ward to act on the ward's own behalf
to
the extent the ward is able. A guardian shall encourage the ward to
de-
velop or regain the skills and abilities necessary to meet the
ward's own
essential needs and to otherwise manage the ward's own affairs. In
making
decisions on behalf of the ward, a guardian shall consider the
expressed
desires and personal values of the ward to the extent known to the
guard-
ian. A guardian shall strive to assure that the personal, civil and
human
rights of the ward are protected. A guardian shall at all times act
in the
best interests of the ward and shall exercise reasonable care,
diligence
and prudence.
(b) A guardian shall have the following
general duties, responsibili-
ties, powers and authorities:
(1) If the ward is a minor, to have the
custody and control of the
minor, and to provide for the minor's care, treatment,
habilitation, edu-
cation, support and maintenance;
(2) if the ward is an adult, to take
charge of the person of the ward,
and to provide for the ward's care, treatment, habilitation,
education,
support and maintenance;
(3) to consider and either provide on
behalf of the ward necessary or
required consents or refuse the same;
(4) to assure that the ward resides in
the least restrictive setting ap-
propriate to the needs of the ward and which is reasonably
available;
(5) to assure that the ward receives any
necessary and reasonably
available medical care, consistent with the provisions of section
28, and
amendments thereto, when applicable, and any reasonably available
non-
medical care or other services as may be needed to preserve the
health
of the ward or to assist the ward to develop or retain skills and
abilities;
(6) to promote and protect the comfort,
safety, health and welfare of
the ward;
(7) to make necessary determinations and
arrangements for, and to
give the necessary consents in regard to, the ward's funeral
arrangements,
burial or cremation, the performance of an autopsy upon the body of
the
ward, and anatomical gifts of the ward, subject to the provisions
and
limitations provided for in K.S.A. 65-2893 and 65-3210 and K.S.A.
2001
Supp. 65-1734, and amendments thereto; and
(8) to exercise all powers and to
discharge all duties necessary or
proper to implement the provisions of this section.
(c) A guardian shall not be obligated by
virtue of the guardian's ap-
pointment to use the guardian's own financial resources for the
support
of the ward.
(d) A guardian shall not be liable to a
third person for the acts of the
ward solely by virtue of the guardian's appointment, nor shall a
guardian
who exercises reasonable care in selecting a third person to
provide any
medical or other care, treatment or service for the ward be liable
for any
injury to the ward resulting from the wrongful conduct of that
third per-
son.
(e) A guardian shall not have the
power:
(1) To prohibit the marriage or divorce
of the ward;
(2) to consent, on behalf of the ward, to
the termination of the ward's
parental rights;
(3) to consent to the adoption of the
ward, unless approved by the
court;
(4) to consent, on behalf of the ward, to
any psychosurgery, removal
of any bodily organ, or amputation of any limb, unless such
surgery, re-
moval or amputation has been approved in advance by the court,
except
in an emergency and when necessary to preserve the life of the ward
or
to prevent serious and irreparable impairment to the physical
health of
the ward;
(5) to consent, on behalf of the ward, to
the sterilization of the ward,
unless approved by the court following a due process hearing held
for
the purposes of determining whether to approve such, and during
which
hearing the ward is represented by an attorney appointed by the
court;
(6) to consent, on behalf of the ward, to
the performance of any
experimental biomedical or behavioral procedure on the ward, or for
the
ward to be a participant in any biomedical or behavioral
experiment, with-
out the prior review and approval of such by either an
institutional review
board as provided for in title 45, part 46 of the code of federal
regulations,
or if such regulations do not apply, then by a review committee
estab-
lished by the agency, institution or treatment facility at which
the pro-
cedure or experiment is proposed to occur, composed of members
se-
lected for the purposes of determining whether the proposed
procedure
or experiment:
(A) Does not involve any significant risk
of harm to the physical or
mental health of the ward, or the use of aversive stimulants, and
is in-
tended to preserve the life or health of the ward or to assist the
ward to
develop or regain skills or abilities; or
(B) involves a significant risk of harm
to the physical or mental health
of the ward, or the use of an aversive stimulant, but that the
conducting
of the proposed procedure or experiment is intended either to
preserve
the life of the ward, or to significantly improve the quality of
life of the
ward, or to assist the ward to develop or regain significant skills
or abilities,
and that the guardian has been fully informed concerning the
potential
risks and benefits of the proposed procedure or experiment or of
any
aversive stimulant proposed to be used, and as to how and under
what
circumstances the aversive stimulant may be used, and has
specifically
consented to such;
(7) to consent, on behalf of the ward, to
the withholding or with-
drawal of life-saving or life sustaining medical care, treatment,
services
or procedures, except:
(A) In accordance with the provisions of
any declaration of the ward
made pursuant to the provisions of K.S.A. 65-28,101 through
65-28,109,
and amendments thereto; or
(B) if the ward, prior to the court's
appointment of a guardian pur-
suant to section 18, and amendments thereto, shall have executed a
du-
rable power of attorney for health care decisions pursuant to
K.S.A. 58-
629, and amendments thereto, and such shall not have been revoked
by
the ward prior thereto, and there is included therein any provision
rele-
vant to the withholding or withdrawal of life-saving or
life-sustaining med-
ical care, treatment, services or procedures, then the guardian
shall have
the authority to act as provided for therein, even if the guardian
has
revoked or otherwise amended that power of attorney pursuant to
the
authority of K.S.A. 58-627, and amendments thereto, or the guardian
may
allow the agent appointed by the ward to act on the ward's behalf
if the
guardian has not revoked or otherwise amended that power of
attorney;
or
(C) in the circumstances where the ward's
treating physician shall
certify in writing to the guardian that the ward is in a persistent
vegetative
state or is suffering from an illness or other medical condition
for which
further treatment, other than for the relief of pain, would not
likely pro-
long the life of the ward other than by artificial means, nor would
be likely
to restore to the ward any significant degree of capabilities
beyond those
the ward currently possesses, and which opinion is concurred in by
either
a second physician or by any medical ethics or similar committee to
which
the health care provider has access established for the purposes of
re-
viewing such circumstances and the appropriateness of any type of
phys-
ican's order which would have the effect of withholding or
withdrawing
life-saving or life sustaining medical care, treatment, services or
proce-
dures. Such written certification shall be approved by an order
issued by
the court;
(8) to exercise any control or authority
over the ward's estate, except
if the court shall specifically authorize such. The court may
assign such
authority to the guardian, including the authority to establish
certain
trusts as provided in section 31, and amendments thereto, and may
waive
the requirement of the posting of a bond, only if:
(A) Initially, the combined value of any
funds and property in the
possession of the ward or in the possession of any other person or
entity,
but which the ward is otherwise entitled to possess, equals $10,000
or
less; and
(B) either the court requires the
guardian to report to the court the
commencement of the exercising of such authority, or requires the
guard-
ian to specifically request of the court the authority to commence
the
exercise of such authority, as the court shall specify; and
(C) the court also requires the guardian,
whenever the combined
value of such funds and property exceeds $10,000, to:
(i) File a guardianship plan as provided
for in section 27, and amend-
ments thereto, which contains elements similar to those which would
be
contained in a conservatorship plan as provided for in section 29,
and
amendments thereto;
(ii) petition the court for appointment
of a conservator as provided
for in section 9, 10 or 11, and amendments thereto; or
(iii) notify the court as the court shall
specify that the value of the
conservatee's estate has equaled or exceeded $10,000, if the court
has
earlier appointed a conservator but did not issue letters of
conservatorship
pending such notification; and
(9) to place the ward in a treatment
facility as defined in section 28,
and amendments thereto, except if authorized by the court as
provided
for therein.
(f) The guardian shall file with the
court reports concerning the status
of the ward and the actions of the guardian as the court shall
direct
pursuant to section 34, and amendments thereto.
New Sec. 27. (a) At any time, the
court may require the guardian,
or the guardian may at any time choose, to develop and file with
the court
a plan for the care of the ward. This plan shall be developed
consistent
with the provisions of subsection (a) of section 26, and
amendments
thereto. This plan may provide for, but need not be limited to
providing
for:
(1) Where the ward will reside, including
any proposal to admit the
ward to any nursing facility;
(2) what degree of autonomy the ward will
have with regard to mak-
ing choices concerning such matters as attending any educational or
vo-
cational training, employment, volunteering for any type of service
or
activity, traveling independently, and obtaining either routine or
specified
medical care without the guardian's consent, and what restrictions
the
guardian will place upon the ward with regard to such choices;
and
(3) what restrictions, if any, the
guardian will place on whom the ward
may associate with, and if so, the names of any persons the
guardian will
restrict from association with the ward.
(b) If the court has not also appointed a
conservator for the ward,
the court may further require the guardian, or the guardian may
choose,
to include as a part of the guardian's plan, what restrictions, if
any, the
guardian will place upon the ward's use of the ward's financial
assets or
the ward's access to those assets. In any case, the court shall not
approve
any guardianship plan which does not comply with the provisions of
sub-
section (e)(8) of section 26, and amendments thereto, if
applicable.
(c) If required by the court, the court
may set a date by which this
guardianship plan shall be filed with the court. Otherwise, the
guardian
may at any time file a plan with the court. Upon the filing of a
plan, the
court may require the guardian to give notice thereof to such
persons as
the court directs. Any interested party may request that the court
conduct
a hearing concerning any plan filed with the court. The court may
require
the guardian to amend or withdraw any plan filed.
(d) Any guardianship plan filed with the
court shall be effectuated by
the guardian to the maximum extent possible consistent with any
changing
circumstances of the ward. Within each report concerning the status
of
the ward submitted to the court as the court directs pursuant to
section
35, and amendments thereto, the guardian shall explain any actions
taken
in deviance from the plan and the reasons therefor.
(e) At any time deemed appropriate by the
guardian, the guardian
may file a revised guardianship plan consistent with the provisions
of this
section.
New Sec. 28. (a) At any time after
the filing of the petition provided
for in section 9, 10, 11 or 12, and amendments thereto, any person
may
file in addition to that original petition, or as a part thereof,
or at any time
after the appointment of a temporary guardian as provided for in
section
24, and amendments thereto, or a guardian as provided for in
section 18,
and amendments thereto, the temporary guardian or guardian may
file,
a verified petition requesting that the court grant authority to
the tem-
porary guardian or guardian to admit the proposed ward or ward to
a
treatment facility, as defined in subsection (h), and to consent to
the care
and treatment of the proposed ward or ward therein. The petition
shall
include:
(1) The petitioner's name and address,
and if the petitioner is the
proposed ward's or ward's court appointed temporary guardian or
guard-
ian, that fact;
(2) the proposed ward's or ward's name,
age, date of birth, address
of permanent residence, and present address or whereabouts, if
different
from the proposed ward's or ward's permanent residence;
(3) the name and address of the proposed
ward's or ward's court
appointed temporary guardian or guardian, if different from the
peti-
tioner;
(4) the factual basis upon which the
petitioner alleges the need for
the proposed ward or ward to be admitted to and treated at a
treatment
facility, or for the proposed ward or ward to continue to be
treated at the
treatment facility to which the proposed ward or ward has already
been
admitted, or for the guardian to have continuing authority to admit
the
ward for care and treatment at a treatment facility pursuant to
subsection
(b)(3) of K.S.A. 2001 Supp. 59-2949, or subsection (b)(3) of K.S.A.
2001
Supp. 59-29b49, and amendments thereto;
(5) the names and addresses of witnesses
by whom the truth of this
petition may be proved; and
(6) a request that the court find that
the proposed ward or ward is in
need of being admitted to and treated at a treatment facility, and
that the
court grant to the temporary guardian or guardian the authority to
admit
the proposed ward or ward to a treatment facility and to consent to
the
care and treatment of the proposed ward or ward therein.
(b) The petition may be accompanied by a
report of an examination
and evaluation of the proposed ward or ward conducted by an
appropri-
ately qualified professional, which shows that the criteria set out
in K.S.A.
39-1803, subsection (e) of K.S.A. 2001 Supp. 59-2946, subsection
(f) of
K.S.A. 2001 Supp. 59-29b46 or K.S.A. 76-12b03, and amendments
thereto, are met.
(c) Upon the filing of such a petition,
the court shall issue the follow-
ing:
(1) An order fixing the date, time and
place of a hearing on the pe-
tition. Such hearing, in the court's discretion, may be conducted
in a
courtroom, a treatment facility or at some other suitable place.
The time
fixed in the order shall in no event be earlier than seven days or
later
than 21 days after the date of the filing of the petition. The
court may
consolidate this hearing with the trial upon the original petition
filed
pursuant to section 9, 10, 11 or 12, and amendments thereto, or
with the
trial provided for in the care and treatment act for mentally ill
persons or
the care and treatment act for persons with an alcohol or substance
abuse
problem, if the petition also incorporates the allegations required
by, and
is filed in compliance with, the provisions of either of those
acts.
(2) An order requiring that the proposed
ward or ward appear at the
time and place of the hearing on the petition unless the court
makes a
finding prior to the hearing that the presence of the proposed ward
or
ward will be injurious to the person's health or welfare, or that
the pro-
posed ward's or ward's impairment is such that the person could
not
meaningfully participate in the proceedings, or that the proposed
ward
or ward has filed with the court a written waiver of such ward's
right to
appear in person. In any such case, the court shall enter in the
record of
the proceedings the facts upon which the court has found that the
pres-
ence of the proposed ward or ward at the hearing should be
excused.
Notwithstanding the foregoing provisions of this subsection, if the
pro-
posed ward or ward files with the court at least one day prior to
the date
of the hearing a written notice stating the person's desire to be
present
at the hearing, the court shall order that the person must be
present at
the hearing.
(3) An order appointing an attorney to
represent the proposed ward
or ward. The court shall give preference, in the appointment of
this at-
torney, to any attorney who has represented the proposed ward or
ward
in other matters, if the court has knowledge of that prior
representation.
The proposed ward, or the ward with the consent of the ward's
conser-
vator, if one has been appointed, shall have the right to engage an
attorney
of the proposed ward's or ward's choice and, in such case, the
attorney
appointed by the court shall be relieved of all duties by the
court. Any
appointment made by the court shall terminate upon a final
determina-
tion of the petition and any appeal therefrom, unless the court
continues
the appointment by further order.
(4) An order fixing the date, time and a
place that is in the best
interest of the proposed ward or ward, at which the proposed ward
or
ward shall have the opportunity to consult with such ward's
attorney. This
consultation shall be scheduled to occur prior to the time at which
the
examination and evaluation ordered pursuant to subsection (d)(1),
if or-
dered, is scheduled to occur.
(5) A notice similar to that provided for
in section 17, and amend-
ments thereto.
(d) Upon the filing of such a petition,
the court may issue the follow-
ing:
(1) An order for a psychological or other
examination and evaluation
of the proposed ward or ward, as may be specified by the court. The
court
may order the proposed ward or ward to submit to such an
examination
and evaluation to be conducted through a general hospital,
psychiatric
hospital, community mental health center, community developmental
dis-
ability organization, or by a private physician, psychiatrist,
psychologist or
other person appointed by the court who is qualified to examine
and
evaluate the proposed ward or ward. The costs of this examination
and
evaluation shall be assessed as provided for in section 45, and
amend-
ments thereto.
(2) If the petition is accompanied by a
report of an examination and
evaluation of the proposed ward or ward as provided for in
subsection
(b), an order granting temporary authority to the temporary
guardian or
guardian to admit the proposed ward or ward to a treatment facility
and
to consent to the care and treatment of the proposed ward or
ward
therein. Any such order shall expire immediately after the hearing
upon
the petition, or as the court may otherwise specify, or upon the
discharge
of the proposed ward or ward by the head of the treatment facility,
if the
proposed ward or ward is discharged prior to the time at which the
order
would otherwise expire.
(3) For good cause shown, an order of
continuance of the hearing.
(4) For good cause shown, an order of
advancement of the hearing.
(5) For good cause shown, an order
changing the place of the hearing.
(e) The hearing on the petition shall be
held at the time and place
specified in the court's order issued pursuant to subsection (c),
unless an
order of advancement, continuance, or a change of place of the
hearing
has been issued pursuant to subsection (d). The petitioner and the
pro-
posed ward or ward shall each be afforded an opportunity to appear
at
the hearing, to testify and to present and cross-examine witnesses.
If the
hearing has been consolidated with a trial being held pursuant to
either
the care and treatment act for mentally ill persons or the care and
treat-
ment act for persons with an alcohol or substance abuse problem,
persons
not necessary for the conduct of the proceedings may be excluded
as
provided for in those acts. The hearing shall be conducted in as
informal
a manner as may be consistent with orderly procedure. The court
shall
have the authority to receive all relevant and material evidence
which
may be offered, including the testimony or written report, findings
or
recommendations of any professional or other person who has
examined
or evaluated the proposed ward or ward pursuant to any order issued
by
the court pursuant to subsection (d). Such evidence shall not be
privileged
for the purpose of this hearing.
(f) Upon completion of the hearing, if
the court finds by clear and
convincing evidence that the criteria set out in K.S.A. 39-1803,
subsection
(e) of K.S.A. 2001 Supp. 59-2946, subsection (f) of K.S.A. 2001
Supp. 59-
29b46 or K.S.A. 76-12b03, and amendments thereto, are met, and
after
a careful consideration of reasonable alternatives to admission of
the pro-
posed ward or ward to a treatment facility, the court may enter an
order
granting such authority to the temporary guardian or guardian as is
ap-
propriate, including continuing authority to the guardian to
readmit the
ward to an appropriate treatment facility as may later become
necessary.
Any such grant of continuing authority shall expire two years after
the
date of final discharge of the ward from such a treatment facility
if the
ward has not had to be readmitted to a treatment facility during
that two-
year period of time. Thereafter, any such grant of continuing
authority
may be renewed only after the filing of another petition seeking
authority
in compliance with the provision of this section.
(g) Nothing herein shall be construed so
as to prohibit the head of a
treatment facility from admitting a proposed ward or ward to that
facility
as a voluntary patient if the head of the treatment facility is
satisfied that
the proposed ward or ward at that time has the capacity to
understand
such ward's illness and need for treatment, and to consent to such
ward's
admission and treatment. Upon any such admission, the head of the
treat-
ment facility shall give notice to the temporary guardian or
guardian as
soon as possible of the ward's admission, and shall provide to the
tem-
porary guardian or guardian copies of any consents the proposed
ward or
ward has given. Thereafter, the temporary guardian or guardian
shall
timely either seek to obtain proper authority pursuant to this
section to
admit the proposed ward or ward to a treatment facility and to
consent
to further care and treatment, or shall otherwise assume
responsibility
for the care of the proposed ward or ward, consistent with the
authority
of the temporary guardian or guardian, and may arrange for the
discharge
from the facility of the proposed ward or ward, unless the head of
the
treatment facility shall file a petition requesting the involuntary
commit-
ment of the proposed ward or ward to that or some other
facility.
(h) As used herein, ``treatment
facility'' means the Kansas neurolog-
ical institute, Larned state hospital, Osawatomie state hospital,
Parsons
state hospital and training center, the rainbow mental health
facility, any
intermediate care facility for the mentally retarded, any
psychiatric hos-
pital licensed pursuant to K.S.A. 75-3307b, and amendments thereto,
and
any other facility for mentally ill persons or mentally retarded or
devel-
opmentally disabled persons licensed pursuant to K.S.A. 75-3307b,
and
amendments thereto, if the proposed ward or ward is to be admitted
as
an inpatient or resident of that facility.
New Sec. 29. (a) (1) The individual
or corporation appointed by the
court to serve as the conservator shall carry out diligently and in
good
faith the general duties and responsibilities, and shall have the
general
powers and authorities, provided for in this section, as well as
any specific
duties, responsibilities, powers and authorities assigned to the
conservator
by the court. In doing so, a conservator at all times shall be
subject to the
control and direction of the court, and shall act in accordance
with the
provisions of any conservatorship plan filed with the court
pursuant to
section 30, and amendments thereto. The court shall have the
authority
to appoint counsel for the conservator, and the fees of such
attorney may
be assessed as costs pursuant to section 45, and amendments
thereto.
(2) A conservator, in the exercise of the
conservator's responsibilities
and authorities, should become aware of the conservatee's needs
and
responsibilities. A conservator shall exercise authority only as
necessitated
by the conservatee's limitations. A conservator shall encourage the
con-
servatee to participate in the making of decisions affecting the
conser-
vatee's estate. A conservator shall encourage the conservatee to
manage
as much of the conservatee's estate as the conservatee is able to
manage.
A conservator shall consider and, to the extent possible, act in
accordance
with the expressed desires and personal values of the conservatee.
A con-
servator shall assist the conservatee in developing or regaining
the skills
and abilities necessary in order for the conservatee to be able to
manage
the conservatee's own estate. A conservator shall strive to assure
that the
personal, civil and human rights of the conservatee are protected.
A con-
servator shall at all times act in the best interests of the
conservatee and
shall exercise reasonable care, diligence and prudence.
(b) A conservator shall have the
following general duties, responsi-
bilities, powers and authorities:
(1) To pay the reasonable charges for the
support, maintenance, care,
treatment, habilitation and education of the conservatee in a
manner suit-
able to the conservatee's station in life and the value of the
conservatee's
estate; but nothing herein shall be construed to release a natural
guardian
from the ordinary obligations imposed by law for the support,
mainte-
nance, care, treatment, habilitation and education of the natural
guard-
ian's minor children;
(2) to pay all just and lawful debts of
the conservatee and the reason-
able charges for the support, maintenance, care, treatment,
habilitation
and education of the conservatee's spouse and minor children;
(3) to separately possess and manage all
the assets of the estate of
the conservatee and to collect all debts and assert all claims in
favor of
the conservatee, and with the approval of the court, to compromise
the
same. The conservator shall keep any property of the conservatee's
estate
insured against theft, other loss or damage, in reasonable amounts
based
upon the value of the estate, and for the benefit of the
conservatee or
the conservatee's estate;
(4) to prosecute and defend all actions
in the name of the conservatee
or as necessary to protect the interests of the conservatee;
(5) to sell assets of the conservatee's
estate when the interests of the
conservatee or conservatee's estate require the sale thereof;
(6) to possess and manage any ongoing
business that the conservatee
was managing and operating prior to the appointment of the
conservator,
and to divest the conservatee's estate of any interests therein,
with the
approval of the court, when the conservator deems it in the best
interests
of the conservatee or the conservatee's estate to do so; and
(7) to invest all funds in a manner which
is reasonably prudent in
view of the value of the conservatee's estate, except as may be
currently
needed for payment of any debts and charges as provided for herein.
If
the conservator shall expend or invest any funds from the
conservatee's
estate for the purchase of any policy of insurance or annuity
contract, the
conservator shall reserve to the conservatee the right to change
the ben-
eficiary thereof upon the termination of the conservatorship and of
any
guardianship which may have been established for the
conservatee.
(c) A conservator shall not be obligated
by virtue of the conservator's
appointment to use the conservator's own financial resources for
the sup-
port of the conservatee.
(d) A conservator shall not be personally
liable:
(1) To a third person for the acts of the
conservatee solely by virtue
of the conservator's appointment, nor shall a conservator who
exercises
reasonable care in selecting a third person to provide any service
to the
conservatee's estate be liable for any loss to the conservatee's
estate re-
sulting from the wrongful conduct of that third person;
(2) on any mortgage note or by reason of
the covenants in any in-
strument of conveyance duly executed by the conservator in the
conser-
vator's representative capacity as authorized by the court;
(3) on a contract properly entered into
in a fiduciary capacity in the
course of administration of the estate unless the conservator fails
to reveal
in the contract the representative capacity and to identify the
estate;
(4) for obligations arising from
ownership or control of property of
the estate or for other acts or omissions occurring in the course
of ad-
ministration of the estate unless the conservator is personally at
fault;
(5) for any environmental condition on or
injury resulting from any
environmental condition on land owned or acquired by the
conservatee's
estate; or
(6) for retaining, until maturity, any
security or investment which is
included in the conservatee's estate at the time of the
establishment of
the conservatorship, even though such security or investment may
not be
considered prudent or reasonable.
(e) A conservator shall be entitled to
receive on behalf of the con-
servatee's estate any distributive share of the assets of an estate
or trust,
and shall have the same right as any other distributee or
beneficiary to
accept or demand distribution in kind, and may retain, until
maturity, any
security or investment so distributed to the conservator, even
though such
security or investment may not be considered prudent or
reasonable.
(f) A conservator shall not have the
power:
(1) To use the assets of a minor's estate
to pay any obligation imposed
by law upon the minor's natural guardian or natural guardians,
including
the support, maintenance, care, treatment, habilitation or
education of
the minor, except with the specific approval of the court granted
upon a
showing of extreme hardship;
(2) to sell, convey, lease or mortgage
the conservatee's interest in the
homestead of the conservatee, except with the approval of the
court, and
no conservator's deed or other instrument executed by virtue of
the
court's approval shall be valid unless the spouse, or if the spouse
has been
adjudicated a person with an impairment in need of a conservator,
the
conservator appointed for the spouse, shall join therein as one of
the
grantors thereof;
(3) to lease, except with the approval of
the court, the possession or
use of any real estate within the conservatee's estate for any
period of
greater than three years;
(4) to sell, convey or mortgage, except
with approval of the court, any
real estate within the conservatee's estate;
(5) to sell, convey, lease or mortgage,
except with approval of the
court, any oil, gas or other mineral interest within the
conservatee's estate;
(6) to sell, convey, lease or mortgage,
except with the approval of the
court, the inchoate interest of the conservatee in any real estate
the title
to which is in the spouse of the conservatee, and no conservator's
deed
or other instrument executed by virtue of the court's approval
shall be
valid unless the spouse, or if the spouse has been adjudicated a
person
with an impairment in need of a conservator, the conservator
appointed
for the spouse, shall join therein as one of the grantors
thereof;
(7) to extend, except with the approval
of the court, an existing mort-
gage in favor of the conservatee or conservatee's estate, for a
period of
more than five years;
(8) to extend, except with the approval
of the court, an existing mort-
gage which obligates the conservatee or the conservatee's estate,
unless
the extension agreement contains the same prepayment privileges,
the
rate of interest does not exceed the lowest rate in the mortgage
extended,
and the extension does not exceed five years; or
(9) to make any gift on behalf of the
conservatee, except with the
approval of the court upon a finding that:
(A) The conservatee had either in the
past as a habit made similar
gifts or declared an intent to make such a gift, or under the
circumstances,
would have made such a gift or gifts;
(B) sufficient funds and assets will
remain in the conservatee's estate
after the making of such a gift to meet the expected needs and
respon-
sibilities of the conservatee; and
(C) any person or entity who would have
received the property to be
gifted had the conservatee died at the time of the gift, but who is
not the
person or entity receiving the gift, has either consented to or
agreed with
the giving of the gift, in writing, or has received notice of the
proposal to
make the gift and been given the opportunity to request a hearing
thereon
by the court to be held prior to the court's approving the
gift.
(g) The conservator shall file with the
court, within 30 days of the
court's issuance of letters of conservatorship as provided for in
section
20, and amendments thereto, an initial inventory of all of the
property
and assets of the conservatee's estate, including any sources of
regular
income to the estate.
(h) The conservator shall file with the
court accountings and other
reports concerning the status of the estate and the actions of the
conser-
vator as the court shall direct pursuant to section 34, and
amendments
thereto.
New Sec. 30. (a) At any time, the
court may require the conservator,
or the conservator may at any time choose, to develop and file with
the
court a plan for the administration of the conservatee's estate.
This plan
shall be developed consistent with the provisions of section 29,
and
amendments thereto. This plan may provide for, but need not be
limited
to providing for:
(1) What autonomy the conservatee will
have with regard to keeping
and utilizing any earnings from employment or gifts which the
conser-
vatee may have or receive; and
(2) what responsibility the conservator
shall have with regard to pro-
tecting the eligibility of the conservatee for any type of public
or other
benefit.
(b) If required by the court, the court
may set a date by which this
conservatorship plan shall be filed with the court. Otherwise, the
conser-
vator may at any time file a plan with the court. Upon the filing
of a plan,
the court may require the conservator to give notice thereof to
such per-
sons as the court directs. Any interested party may request that
the court
conduct a hearing concerning any plan filed with the court. The
court
may require the conservator to amend or withdraw any plan
filed.
(c) Any conservatorship plan filed with
the court shall be effectuated
by the conservator to the maximum extent possible consistent with
any
changing circumstances of the conservatee. Within each accounting
sub-
mitted to the court as the court directs pursuant to section 34,
and amend-
ments thereto, the conservator shall explain any actions taken in
deviance
from the plan and the reasons therefor.
(d) At any time deemed appropriate by the
conservator, the conser-
vator may file a revised conservatorship plan consistent with the
provi-
sions of this section.
New Sec. 31. (a) At any time the
conservator, or the guardian if the
guardian has been granted the authority to exercise control or
authority
over the ward's estate pursuant to subsection (e)(8) of section 26,
and
amendments thereto, may file a verified petition requesting that
the court
grant authority to the conservator or guardian to establish an
irrevocable
trust which will enable the conservatee or ward to qualify for
benefits
from any federal, state or local government program, or which will
ac-
celerate the conservatee's or ward's qualification for such
benefits.
(b) The petition shall include:
(1) The conservator's or guardian's name
and address, and if the con-
servator is the petitioner and is both the conservator and the
guardian, a
statement of that fact, or if the guardian is the petitioner, a
statement that
the court has previously granted to the guardian the authority to
exercise
control or authority over the ward's estate;
(2) the conservatee's or ward's name,
age, date of birth, address of
permanent residence, and present address or whereabouts, if
different
from the conservatee's or ward's permanent residence;
(3) the name and address of the
conservatee's court appointed guard-
ian, if a guardian has been appointed by the court and is different
from
the conservator;
(4) the names and addresses of any
spouse, adult children and adult
grandchildren of the conservatee or ward, and those of any parents
and
adult siblings of the conservatee or ward, or if no such names or
addresses
are known to the petitioner, the name and address of at least one
adult
who is nearest in kinship to the conservatee, or if none, that
fact. If no
such names and addresses are known to the petitioner, but the
petitioner
has reason to believe such persons exist, then the petition shall
state that
fact and that the petitioner has made diligent inquiry to learn
those names
and addresses;
(5) a statement of whether the secretary
of social and rehabilitation
services has an interest in the matter by virtue of the purpose of
the trust
being to enable the conservatee or ward to qualify for benefits
from any
program administered by the secretary;
(6) the names and addresses of other
persons, if any, whom the pe-
titioner knows to have an interest in the matter, or a statement
that the
petitioner knows of no other persons having an interest in the
matter;
(7) a description of the funds or assets
of the conservatee or ward
which the petitioner proposes to transfer to a trust;
(8) the factual basis upon which the
petitioner alleges the need for
such a trust;
(9) the names and addresses of witnesses
by whom the truth of this
petition may be proved; and
(10) a request that the court find that
the conservator or guardian
should be granted such authority, and that the court grant to the
conser-
vator or guardian the authority to establish such a trust.
(c) The petition shall be accompanied by
a draft of the instrument
by which the trust is proposed to be established.
(d) Upon the filing of such a petition,
the court shall issue an order
fixing the date, time and place of a hearing upon the petition,
which
hearing may be held forthwith and without further notice if those
persons
named within the petition pursuant to the requirements of
subsections
(b)(4), (b)(5) and (b)(6), as applicable, have entered their
appearances,
waived notice and agreed to the court's granting to the conservator
or
guardian the authority to establish the proposed trust. Otherwise,
the
court shall require the petitioner to give notice of this hearing
to such
persons and in such manner as the court may direct, including
therewith
a copy of the proposed trust instrument. This notice shall advise
such
persons that if they have any objections to this authority being
granted to
the conservator or guardian, that they must file their written
objections
with the court prior to the scheduled hearing or that they must
appear at
the hearing to present those objections. The court may appoint an
attor-
ney to represent the conservatee or ward in this matter similarly
as pro-
vided for in subsection (a)(3) of section 14, and amendments
thereto, and
in such event, the court shall require the petitioner to also give
this notice
to that attorney.
(e) At the conclusion of the hearing, if
the court finds by a prepon-
derance of the evidence that:
(1) The establishment of such a trust
will enable the conservatee or
ward to qualify for benefits from any federal, state or local
government
program, or will accelerate the qualification of the conservatee or
ward
for such benefits;
(2) the conservatee or ward will be the
sole beneficiary of such trust;
(3) the term of the trust will not extend
beyond the lifetime of the
conservatee or ward;
(4) the provisions of the trust will
provide for the distribution of the
trust estate for the benefit of the conservatee or ward for special
needs
not satisfied from governmental benefits and that such
distributions made
for special needs not satisfied from governmental benefits will
only be
made in similar manner and under similar circumstances as the
conser-
vatee's or ward's estate would otherwise have been distributed by
the
conservator or guardian for the benefit of the conservatee or ward
had
the trust not been established;
(5) if the provisions of the trust will
grant discretion to the trustee to
terminate the trust during the lifetime of the conservatee or ward,
that
such provisions shall preclude the exercise thereof if such
termination of
the trust will disqualify the conservatee or ward from being
eligible for
any governmental benefits; and
(6) the provisions of the trust will
provide that, upon termination of
the trust, the remaining trust estate will first be expended to
reimburse
the governmental entities for the benefits which have been provided
to
the conservatee or ward, if such reimbursement was ever required as
a
condition for the conservatee's or ward's qualification for such
benefits,
and then any remaining balance shall be paid over and assigned as
follows:
(A) To the conservator, if the
termination occurs during the lifetime
of the conservatee and the conservatorship remains open, or to the
guard-
ian, if the termination occurs during the lifetime of the ward and
the
guardianship remains open, or to the conservatee or ward, in the
event
the conservatorship or guardianship has been terminated and the
con-
servatee or ward has been restored to capacity; or
(B) if the termination of the trust
occurs by virtue of the conservatee's
or ward's death, as follows: (i) If a testamentary power of
appointment
was granted to the conservatee or ward in the trust instrument,
pursuant
to the conservatee's or ward's valid exercise of such testamentary
power
of appointment which specifically references such power of
appointment;
or (ii) in the absence of any such power of appointment or to the
extent
such power was not validly exercised by the conservatee or ward
over the
entirety of the trust assets, to: (a) The devisees and legatees the
trustee
determines would have otherwise received such trust assets, and in
the
manner they would have received it, under the provisions of the
conser-
vatee's or ward's last will and testament had such last will and
testament
been admitted to probate and the trust assets constituted a portion
of the
conservatee's or ward's estate; (b) in the absence of a valid duly
probated
last will and testament of the conservatee or ward, the persons who
would
have received such trust assets, and in the manner they would
receive it,
under the intestacy laws of the state of residence of the
conservatee or
ward at the time of the death of the conservatee or ward had such
trust
assets constituted a portion of the estate of the conservatee or
ward; or
(c) the personal representative of the estate of the conservatee or
ward,
then the court may grant to the conservator or guardian the
authority to
establish such a trust and to transfer specified property or assets
from the
conservatee's or ward's estate to the trust. The court shall order
the con-
servator or guardian to report any such transfer within the
conservator's
or guardian's next accounting as required by section 34, and
amendments
thereto.
(f) The court may require as a condition
of the court's granting to the
conservator or guardian the authority to establish such a trust
that the
sole trustee of the trust be the court appointed conservator or
guardian,
and that the conservator or guardian, acting as the trustee, shall
be subject
to the same requirements and limitations as provided for in this
act con-
cerning conservatorships and shall report and account to the court
con-
cerning the trust estate the same as if the trust estate remained
within
the conservatee's or ward's estate.
New Sec. 32. (a) At any time after
the 17th birthday of a minor con-
servatee who has not been adjudged to be a minor with an
impairment
in need of a guardian or conservator, or both, but before 30 days
prior to
the minor's 18th birthday, the conservator may file a verified
petition
requesting that the court grant authority to the conservator to
establish a
plan for the extended distribution of the minor's estate to the
minor after
the minor's 18th birthday. The petition shall include:
(1) The conservator's name and address,
and if the conservator is also
the minor's court appointed guardian, that fact;
(2) the minor's name, age, date of birth,
address of permanent resi-
dence, and present address or whereabouts, if different from the
minor's
permanent residence;
(3) the name and address of the minor's
court appointed guardian, if
a guardian has been appointed by the court and is different from
the
petitioner;
(4) the names and addresses of any spouse
of the minor, and those
of any parent and adult siblings of the minor, or if none, that
fact. If no
such names or addresses are known to the petitioner, but the
petitioner
has reason to believe that such persons exist, then the petition
shall state
that fact and that the petitioner has made diligent inquiry to
learn those
names and addresses;
(5) a description of the funds or assets
of the minor's estate which
the conservator proposes to distribute to the minor over an
extended
period following the minor's 18th birthday;
(6) the factual basis upon which the
conservator alleges the need for
such an extended distribution plan;
(7) a description of the plan proposed by
the conservator and how
and by what means the distribution will occur if the court grants
to the
conservator the authority to establish such a plan;
(8) the names and addresses of witnesses
by whom the truth of this
petition may be proved; and
(9) a request that the court find that
the conservator should be
granted such authority, and that the court grant to the conservator
the
authority to establish such an extended distribution plan.
(b) Upon the filing of such a petition,
the court shall issue an order
fixing the date, time and place of a hearing on the petition, which
hearing
may be held forthwith and without further notice if the minor and
those
other persons named within the petition pursuant to the
requirements of
subsection (a)(4), as applicable, have entered their appearance,
waived
notice, and agreed to the court's granting to the conservator the
authority
to establish the plan for the extended distribution of the minor's
estate
as contained within the petition. Otherwise, the court shall
require the
conservator to give notice of this hearing to the minor and those
other
persons in such manner as the court may direct. The court shall
require
that the notice be accompanied by a copy of the petition containing
a
description of the plan proposed by the conservator. The court
shall re-
quire that the notice advise the minor and those other persons that
if
they have any objections to this authority being granted to the
conser-
vator, that they must file their written objections with the court
prior to
the scheduled hearing or that they must appear at the hearing to
present
those objections. The court may appoint an attorney to represent
the
minor in this matter similarly as provided for in subsection (a)(3)
of sec-
tion 14, and amendments thereto, and in such event, the court shall
re-
quire the conservator to also give this notice to that
attorney.
(c) At the conclusion of the hearing, if
the court finds by a prepon-
derance of the evidence that:
(1) Based upon the value, nature and
character of the assets within
the minor's estate, the minor does not possess the maturity and
judgment
to make determinations and act responsibly with regard to such
estate,
and that therefore it is in the best interests of the minor that
the court
grant this authority to the conservator;
(2) the plan approved by the court will
fully distribute all of the funds
and assets of the minor's estate to the minor by the minor's 25th
birthday;
and
(3) the plan approved by the court
adequately provides for meeting
the expected needs of the minor from the minor's 18th birthday
until the
final distribution of the funds or assets which the court
authorizes to be
set aside or transferred from the estate are paid over to the
minor, in-
cluding provisions for accelerated distribution in extraordinary
circum-
stances, which may require court approval, then the court may grant
to
the conservator the authority to establish such a plan and to
effectuate it.
The court shall order the conservator to report any expenditure or
transfer
of funds or assets from the minor's estate for the purposes of
effectuating
this plan within the conservator's next accounting as required by
section
34, and amendments thereto.
(d) The court may require that the
conservator continue to administer
the plan after the minor becomes 18 years of age. The court may
extend
the conservatorship with regard to the funds or assets of the
minor's estate
which are set aside to effectuate the plan and in such case the
conservator
shall continue to be subject to the same requirements and
limitations as
provided for in this act concerning conservatorships and shall
report and
account to the court concerning the plan's execution, even though
other
funds or assets of the minor's estate are paid over to the minor
upon the
minor's becoming 18 years of age.
(e) The minor shall be without the power,
voluntarily or involuntarily,
to sell, mortgage, pledge, hypothecate, assign, alienate,
anticipate, trans-
fer or convey any interest in the principal or the income from any
funds
or assets of the minor's estate set aside or transferred to
effectuate a plan
for extended distribution as herein provided until such is actually
paid to
the minor.
New Sec. 33. (a) Any person having
a claim for payment against the
conservatee or the conservatee's estate, other than for any tort
for which
the claimant has not been awarded judgment, or any person having
a
claim for payment for any goods or services provided to the
conservatee
or the conservatee's estate by the claimant in reliance upon
actions or the
authority of the conservator, may file with the court a verified
petition
requesting payment for such. The petition shall include:
(1) The petitioner's name and
address;
(2) the conservator's name and
address;
(3) the amount of the claim, and the
factual basis upon which the
petitioner makes this claim;
(4) a statement that demand for payment
of the claim has been made
upon the conservator, but that the conservator refuses or has
failed to pay
the claim; and
(5) a request that the court determine
that the claim is owed to the
petitioner, and for an order of the court directing the conservator
to pay
the claim.
(b) Upon the filing of such a petition,
the court shall issue an order
fixing the date, time and place of a hearing on the petition. The
court
shall require the petitioner to give notice of this hearing to the
conservator
and to such other persons as the court may direct. The court may
appoint
an attorney to represent the conservatee in this matter similarly
as pro-
vided for in subsection (a)(3) of section 14, and amendments
thereto.
(c) At the completion of the hearing, if
the court finds, by a prepon-
derance of the evidence, that the petitioner is owed the claim, or
some
part thereof, the court shall issue an order to the conservator to
pay the
same from the conservatee's estate, or to pay so much of the claim
as the
court allows, and to include such in the conservator's next report
and
accounting. Otherwise, the court shall deny the petitioner's
request.
New Sec. 34. (a) The guardian or
conservator appointed by the court
pursuant to section 18, and amendments thereto, annually, and at
other
times as the court may specify, shall file with the court, in such
form as
the supreme court may require by rule, or in the absence of such
rule or
in supplement thereto, as the court may require, reports and
accountings
concerning the status of the ward or conservatee, the estate of the
ward
or conservatee, and the actions of the guardian or conservator.
(b) The guardian or conservator, or both,
shall file a special report or
accounting with the court upon the occurrence of any of the
following:
(1) A change of address of the guardian
or conservator;
(2) a change of residence or placement of
the ward or conservatee;
(3) a significant change in the health or
impairment of the ward or
conservatee;
(4) the acquisition by the ward of any
real property, or the receipt or
accumulation of other property or income by the ward or by the
guardian
on behalf of the ward, which causes the total value of the ward's
estate
to equal or exceed $10,000; or
(5) the death of the ward or
conservatee.
(c) Upon the death of the guardian or
conservator, or upon the guard-
ian or conservator being adjudged in this state to be an adult with
an
impairment in need of a guardian or a conservator, or both, or
being
similarly adjudged in any other state, a representative on behalf
of the
guardian or conservator, as the court may allow, shall file a final
report
or accounting on behalf of that guardian or conservator.
(d) If the guardian or conservator is
under contract with the Kansas
guardianship program, the court shall order that the guardian or
conser-
vator file with the Kansas guardianship program a copy of each
report or
accounting filed with the court.
(e) At the termination of the
guardianship, or upon the resignation,
impairment, death or removal of the guardian, the guardian or a
repre-
sentative on behalf of the guardian, as the court may allow, shall
file with
the court a final report concerning the status of the ward and of
the
actions and recommendations of the guardian.
(f) At the termination of the
conservatorship, or upon the resignation,
impairment, death or removal of the conservator, the conservator or
a
representative on behalf of the conservator, as the court may
allow, shall
file with the court a final report and accounting concerning the
status of
the conservatee, of the conservatee's estate, and of the actions
and rec-
ommendations of the conservator. The conservator, the conservator's
es-
tate and the conservator's surety shall not be finally discharged
until such
final report and accounting is filed, and the accounting allowed
and settled
as provided for in section 37, and amendments thereto. The
conservator's
surety, in the surety's discretion, may file any report or
accounting it
deems appropriate, or perform the duties of the conservator upon
the
resignation, death, impairment or removal of the conservator,
subject to
the authority of the standby conservator, if a standby conservator
has been
appointed by the court pursuant to section 25, and amendments
thereto.
New Sec. 35. (a) Upon the filing of
a report by the guardian pursuant
to section 34, and amendments thereto, the court or a designee of
the
court shall review the report, the court's prior orders, any
guardianship
plan which has been filed with the court pursuant to section 27,
and
amendments thereto, and which remains in effect, and any reports
which
the guardian has previously filed, to determine whether:
(1) The current report reflects
reasonable administration of the
guardianship;
(2) the guardian is performing assigned
duties and responsibilities, or
exercising granted powers and authorities, in a manner consistent
with
the prior orders of the court and with any guardianship plan in
effect;
(3) additional duties, responsibilities,
powers or authorities should be
granted to the guardian, or limitations should be made with
regard
thereto, or other modifications should be made within the
guardianship
to protect the interests of the ward or the ward's estate; or
(4) further proceedings as provided for
in this act may be appropriate.
(b) Upon the filing of any report, or
based upon other information
which comes to the court's attention concerning matters contained
within
the report or which should be contained within the report, the
court may
set a hearing upon the matter and may require the guardian to
appear
before the court. The court may require the guardian to give notice
of
this hearing to such persons and in such manner as the court may
direct.
The court may appoint an attorney to represent the ward in this
matter
similarly as provided for in subsection (a)(3) of section 14, and
amend-
ments thereto. The court may require the guardian, and may allow
the
ward, the conservator, if a conservator has been appointed, and
other
interested persons, to present evidence concerning the actions of
the
guardian or the recommendations of such persons.
(c) At the conclusion of the court's
review of the guardian's report,
or following any hearing held as provided for in subsection (b),
the court
shall issue an order either approving or disapproving the
guardian's re-
port. The court may approve a reasonable guardian's fee which shall
be
assessed to the ward's estate. The court within its order may grant
to or
withdraw from the guardian specified duties, responsibilities,
powers or
authorities as provided for in section 26, and amendments thereto,
may
specifically order the guardian with regard to the performance of
assigned
duties, responsibilities, powers or authorities, including
requiring the
guardian to file an amended report, may require the guardian to
develop
and file with the court a guardianship plan as provided for in
section 27,
and amendments thereto, or the court may proceed pursuant to
section
39, and amendments thereto, to remove the guardian and to appoint
a
successor guardian, or the court may proceed pursuant to section 41
or
42, and amendments thereto, to restore the ward to capacity or
terminate
the guardianship.
(d) If the court, pursuant to subsection
(e)(8) of section 26, and
amendments thereto, has authorized the guardian to exercise any
control
or authority over the ward's estate, then, in addition to or as a
part of
each report filed by the guardian pursuant to this section, the
guardian
also shall account for the ward's estate. In reviewing the
guardian's report,
the court also shall review the guardian's accounting and at the
conclusion
thereof, if the court finds that the accounting accurately accounts
for the
ward's estate and shows appropriate administration on the part of
the
guardian, the court shall issue an order approving the
accounting.
New Sec. 36. (a) Upon the filing of
a report or accounting by the
conservator pursuant to section 34, and amendments thereto, the
court
or a designee of the court shall review the report or accounting,
the court's
prior orders, any conservatorship plan which has been filed with
the court
pursuant to section 30, and amendments thereto, and which remains
in
effect, and any reports and accountings which the conservator has
pre-
viously filed, to determine whether:
(1) The current report or accounting
reflects reasonable administra-
tion of the conservatorship;
(2) the conservator is performing
assigned duties and responsibilities,
or exercising granted powers and authorities, in a manner
consistent with
the prior orders of the court and with any conservatorship plan in
effect;
(3) additional duties, responsibilities,
powers or authorities should be
granted to the conservator, or limitations should be made with
regard
thereto, or other modifications should be made within the
conservator-
ship to protect the interests of the conservatee or the
conservatee's estate;
or
(4) further proceedings as provided for
in this act may be appropriate.
(b) Upon the filing of any report or
accounting, or based upon other
information which comes to the court's attention concerning matters
con-
tained within the report or accounting or which should be
contained
within the report or accounting, the court may set a hearing upon
the
matter and may require the conservator to appear before the court.
The
court may require the conservator to give notice of this hearing to
such
persons and in such manner as the court may direct. The court
may
appoint an attorney to represent the conservatee in this matter
similarly
as provided for in subsection (a)(3) of section 14, and
amendments
thereto. The court may require the conservator, and may allow the
con-
servatee, the guardian, if a guardian has been appointed, and other
in-
terested persons, to present evidence concerning the actions of the
con-
servator or the recommendations of such persons.
(c) At the conclusion of the court's
review of the conservator's report
or accounting, or following any hearing held as provided for in
subsection
(b), the court shall issue an order either approving or
disapproving the
conservator's report or accepting or rejecting the conservator's
account-
ing. The court within its order may grant to or withdraw from the
con-
servator specified duties, responsibilities, powers or authorities
as pro-
vided for in section 29, and amendments thereto, may specifically
order
the conservator with regard to the performance of assigned duties,
re-
sponsibilities, powers or authorities, including requiring the
conservator
to file an amended report or accounting, may require the
conservator to
develop and file with the court a conservatorship plan as provided
for in
section 30, and amendments thereto, or the court may proceed
pursuant
to section 39, and amendments thereto, to remove the conservator
and
to appoint a successor conservator, or the court may proceed
pursuant to
section 41 or 42, and amendments thereto, to restore the
conservatee to
capacity or terminate the conservatorship.
(d) No order issued pursuant to this
section shall be construed to
have finally allowed or settled any conservator's accounting,
except if pro-
ceedings have been held in compliance with section 37, and
amendments
thereto.
New Sec. 37. (a) At the time of or
at any time after the filing of an
accounting by the conservator, the conservator may file with the
court a
verified petition requesting a hearing on that accounting for the
purposes
of allowance and settlement. The petition shall include:
(1) The conservator's name and address,
and if the conservator is also
the guardian, that fact;
(2) the conservatee's name, age, date of
birth, address of permanent
residence, and present address or whereabouts, if different from
the con-
servatee's permanent residence;
(3) the name and address of the court
appointed guardian, if different
from the conservator;
(4) the names and addresses of any
spouse, adult children and adult
grandchildren of the conservatee, and those of any parent and adult
sib-
lings of the conservatee, or if no such names or addresses are
known to
the petitioner, the name and address of at least one adult who is
nearest
in kinship to the conservatee, or if none, that fact. If no such
names or
addresses are known to the conservator, but the conservator has
reason
to believe that such persons exist, then the petition shall state
that fact
and that the conservator has made diligent inquiry to learn those
names
and addresses;
(5) the names and addresses of other
persons, if any, whom the con-
servator knows to have an interest in the matter, or a statement
that the
petitioner knows of no other persons having an interest in the
matter;
(6) designation of the accounting period
for which allowance and set-
tlement is sought; and
(7) a request that this accounting be
accepted and that the court issue
an order providing that all matters related thereto are finally
allowed and
settled.
(b) Upon the filing of such a petition,
the court shall issue an order
fixing the date, time and place of a hearing on the petition, which
hearing
may be held forthwith and without further notice if those persons
named
within the petition pursuant to the requirement of subsections
(a)(3),
(a)(4) and (a)(5), as applicable, have entered their appearances,
waived
notice, and agreed to the court's accepting the accounting and
issuing an
order of final allowance and settlement. Otherwise, the court shall
require
the conservator to give notice of this hearing to such persons in
such
manner as the court may specify, including therewith a copy of the
con-
servator's petition and a copy or copies of the accounting or
accountings
for which the conservator requests an order of final allowance and
settle-
ment. This notice shall advise such persons that if they have any
objections
to the accounting or accountings for which final allowance and
settlement
is sought that they must file their written objections with the
court prior
to the scheduled hearing or that they must appear at the hearing to
pres-
ent those objections. The court may appoint an attorney to
represent the
conservatee in this matter similarly as provided for in subsection
(a)(3) of
section 14, and amendments thereto, and in such event, the court
shall
require the conservator to also give this notice to that
attorney.
(c) In the absence of a petition having
been filed by the conservator
pursuant to this section, the court may set a hearing to determine
whether
an order of final allowance and settlement should be issued with
regard
to any accounting which has been previously filed by the
conservator, and
may require the conservator or some other person to give notice
thereof
as provided for herein.
(d) The hearing shall be conducted in as
informal a manner as may
be consistent with orderly procedure. The court shall have the
authority
to receive all relevant and material evidence which may be offered,
in-
cluding the testimony or written report, findings or
recommendations of
any professional or other person who has familiarity with the
conservatee
or the conservatee's estate. The court may review the court's prior
orders,
any conservatorship plan which has been filed pursuant to section
30, and
amendments thereto, and any reports and accountings which have
been
filed by the guardian or conservator, or both, even if previously
approved
or allowed, to determine whether the current accounting seems
reason-
able in light of the past reports or accountings, and to determine
whether
any further proceedings under this act may be appropriate. The
court
shall give to the conservator, to the conservatee, and to other
interested
persons, the opportunity to present evidence to the court
concerning the
actions of the conservator, the conservatee's estate and the
recommen-
dations of such persons.
(e) At the conclusion of the hearing, if
the court finds, by a prepon-
derance of the evidence, that the accounting accurately accounts
for the
conservatee's estate, shows appropriate administration on the part
of the
conservator, that any fees of the conservator are reasonable, and
that due
notice and an opportunity to be heard has been provided to any
interested
parties, the court shall approve the accounting and order that it
is allowed
and settled. Such allowance and settlement shall relieve the
conservator
and the conservator's sureties from liability for all acts and
omissions
which are fully and accurately described in the accounting,
including the
investments of the assets of the conservatee's estate.
(f) If the court finds by a preponderance
of the evidence that the
conservator has innocently misused any funds or assets of the
conserva-
tee's estate, the court shall order the conservator to repay such
funds or
return such assets to the conservatee's estate. If the court finds
that the
conservator has embezzled or converted for the conservator's own
per-
sonal use any funds or assets of the conservatee's estate, the
court shall
find the conservator liable for double the value of those funds or
assets,
as provided for in K.S.A. 59-1704, and amendments thereto. In
either
case, the court may order the forfeiture of the conservator's bond,
or such
portion thereof as equals the value of such funds or assets,
including any
lost earnings and the costs of recovering those funds or assets,
including
reasonable attorney fees, as the court may allow, and may require
of the
surety satisfaction thereof. Neither the conservator, nor the
conservator's
estate or surety, shall be finally released from such bond until
the satis-
faction thereof.
(g) At no time shall the conservator, or
the conservator's estate or
surety, be finally released from the bond required by the court
pursuant
to section 20, and amendments thereto until a final accounting has
been
filed, allowed and settled as provided for herein.
(h) Upon the filing of a final
accounting, delivery of any remaining
funds and assets of the conservatee's estate to the person entitled
thereto,
and presentation to the court of a receipt for such, the court may
issue a
final order of allowance and settlement as provided for herein, and
only
thereby finally shall release the conservator, the conservator's
estate and
the conservator's surety.
New Sec. 38. (a) A verified
petition requesting the court to modify
its prior order appointing co-guardians or co-conservators, or
both, by
either changing the authority of the co-guardians or
co-conservators, or
both, to act independently, to act only in concert, or to act only
in concert
with regard to certain matters, or to remove one or both of the
co-guard-
ians or co-conservators, or both, and to appoint only a single
guardian or
a single conservator, or both, shall include:
(1) The petitioner's name and address,
and if the petitioner is one of
the ward's or conservatee's court appointed co-guardians or
co-conser-
vators, that fact;
(2) the ward's or conservatee's name,
age, date of birth, address of
permanent residence, and present address or whereabouts, if
different
from the ward's or conservatee's permanent residence;
(3) the names and addresses of each of
the court appointed co-guard-
ians or co-conservators, or both, who are not the petitioner;
(4) the factual basis upon which the
petitioner alleges the need for
the court to modify its prior order of appointment, and whether the
pe-
titioner requests that the court require the co-guardians or
co-conserva-
tors, or both, to act independently, to act only in concert, or to
act only
in concert with regard to certain matters, or whether the
petitioner re-
quests that the court remove one of the co-guardians or
co-conservators,
or both, and appoint only a single guardian or a single
conservator, or
both;
(5) the names and addresses of witnesses
by whom the truth of the
petition may be proved;
(6) if the petitioner is requesting the
appointment of a single guardian
or a single conservator, or both, to replace the co-guardians or
co-con-
servators, or both, the name, address, and relationship to the ward
or
conservatee, if any, of the individual or corporation whom the
petitioner
suggests that the court appoint as the single guardian or single
conser-
vator, or both, and if the suggested single guardian or single
conservator
is under contract with the Kansas guardianship program, that fact;
and
(7) a request that the court make a
determination that the co-guard-
ians or co-conservators, or both, should each have the authority to
act
independently, should be required to act only in concert or only in
concert
with regard to certain matters, or that the co-guardians or
co-conserva-
tors, or both, should be replaced with a single guardian or a
single con-
servator, or both.
(b) Upon the filing of such a petition,
the court shall issue an order
fixing the date, time and place of a hearing on the petition, which
hearing
may be held forthwith and without further notice if each of the
co-guard-
ians or co-conservators, as applicable, and, if in the opinion of
the court,
all other persons necessary to the matter, have entered their
appearance,
waived notice, and agreed to the court granting the petitioner's
request.
Otherwise, the court shall require the petitioner to give notice of
this
hearing to such persons and in such manner as the court may
specify,
including therewith a copy of the petition. The court shall require
the
petitioner to give this notice to any co-guardians or
co-conservators, or
both. The court may appoint an attorney to represent the ward or
con-
servatee in this matter, similarly as provided for in subsection
(a)(3) of
section 14, and amendments thereto, and in such event, the court
shall
require the petitioner to also give this notice to that
attorney.
(c) In the absence of a petition having
been filed pursuant to this
section, but whenever the court believes that it may be in the best
inter-
ests of the ward or conservatee to consider modification of the
court's
prior order appointing co-guardians or co-conservators, or both,
the court
may set a hearing thereon, and may require one of the co-guardians
or
co-conservators to give notice thereof as provided for herein.
(d) The hearing shall be conducted in as
informal a manner as may
be consistent with orderly procedure. The court shall have the
authority
to receive all relevant and material evidence which may be offered,
in-
cluding the testimony or written report, findings or
recommendations of
any professional or other person who has familiarity with the ward
or
conservatee or the conservatee's estate. The court may review the
court's
prior orders, any guardianship plan or conservatorship plan which
has
been filed pursuant to section 27 or 30, and amendments thereto,
and
any reports or accountings which have been filed by the
co-guardians or
co-conservators, or both, even if previously approved or allowed.
The
court shall give to the co-guardians or co-conservators, or both,
to the
ward or conservatee, and to other interested persons, the
opportunity to
present information to the court concerning the actions of the
co-guard-
ians or co-conservators, or both, and of the recommendations of
such
persons.
(e) At the conclusion of the hearing, if
the court finds that it is in the
best interests of the ward or conservatee to do so, the court may
modify
its prior orders to provide that the co-guardians or
co-conservators, or
both, shall have the authority to act independently, to act only in
concert,
in certain circumstances or with regard to certain matters to act
indepen-
dently and in certain other circumstances or with regard to certain
other
matters to act only in concert, or the court may remove the
co-guardians
or co-conservators, or both, and appoint a single guardian or a
single
conservator, or both. In making any such appointments, the court
shall
act in accordance with sections 19 and 20, and amendments
thereto.
(f) If the court finds by a preponderance
of the evidence that a co-
conservator has innocently misused any funds or assets of the
conserva-
tee's estate, the court shall order the co-conservator to repay
such funds
or return such assets to the conservator's estate. If the court
finds that a
co-conservator has embezzled or converted for the co-conservator's
per-
sonal use any funds or assets of the conservatee's estate, the
court shall
find the co-conservator liable for double the value of those funds
or assets,
as provided for in K.S.A. 59-1704, and amendments thereto. In
either
case, the court may order the forfeiture of the co-conservator's
bond, or
such portion thereof as equals the value of such funds or assets,
including
any lost earnings and the costs of recovering those funds or
assets, in-
cluding reasonable attorney fees, as the court may allow, and may
require
of the surety satisfaction thereof. Neither the conservator, nor
the con-
servator's estate or surety, shall be finally released from such
bond until
the satisfaction thereof.
(g) No co-conservator, nor the
co-conservator's estate or surety, shall
be finally released from their bond until a final accounting has
been filed,
allowed and settled as provided for in section 37, and
amendments
thereto.
New Sec. 39. (a) A verified
petition may be filed requesting the court
to accept the resignation of the guardian or the conservator, or
both, to
remove the guardian or conservator, or both, or to appoint a
successor
guardian or conservator, or both, and shall include:
(1) The petitioner's name and address,
and if the petitioner is the
ward's or conservatee's court appointed guardian or conservator,
that fact;
(2) the ward's or conservatee's name,
age, date of birth, address of
permanent residence, and present address or whereabouts, if
different
from the ward's or conservatee's permanent residence;
(3) the name and address of the court
appointed guardian or conser-
vator, or both, if different from the petitioner;
(4) the factual basis upon which the
petitioner alleges the need for
the removal of the guardian or conservator, or both, or the
appointment
of a successor guardian or conservator, or both. If the current
guardian
or conservator is requesting the court to accept the guardian's or
conser-
vator's resignation, the petition shall include a statement to that
effect
and state the reasons why the guardian or conservator, or both,
desires
to resign;
(5) the names and addresses of witnesses
by whom the truth of this
petition may be proved;
(6) the name, address, and relationship
to the ward or conservatee,
if any, of the individual or corporation whom the petitioner
suggests that
the court appoint as the successor guardian or conservator, and if
the
suggested successor guardian or conservator is under contract with
the
Kansas guardianship program, that fact; and
(7) a request that the court make a
determination that the guardian
or conservator should be allowed to resign or should be removed, or
that
a successor guardian or conservator, or both, should be
appointed.
(b) Upon the filing of such a petition,
the court shall issue an order
fixing the date, time and place of a hearing on the petition, which
hearing
may be held forthwith and without further notice if, in the opinion
of the
court, all persons necessary to the matter have entered their
appearances,
waived notice, and agreed to the court's entering the order
requested.
Otherwise, the court shall require the petitioner to give notice of
this
hearing to such persons and in such manner as the court may
direct,
including therewith a copy of the petition. This notice shall
advise such
persons that if they have any objections to the petition that they
must file
their written objections with the court prior to the scheduled
hearing or
that they must appear at the hearing to present those objections.
If the
petitioner is not the guardian or conservator, the court shall
require the
petitioner to give this notice to the guardian or conservator, or
both. The
court may appoint an attorney to represent the ward or conservatee
in
this matter, similarly as provided for in subsection (a)(3) of
section 14,
and amendments thereto, and in such event, the court shall require
the
petitioner also to give this notice to that attorney.
(c) In the absence of a petition having
been filed, but at any time
when the court has reason to believe that removal of the guardian
or
conservator, or both, may be necessary, the court may set a
hearing
thereon, and may require the guardian, conservator or some other
person
to give notice thereof as provided for herein. Nothing herein shall
be
construed such that the court does not have the authority to
suspend
immediately the powers and authorities of a guardian or
conservator, or
both, whenever the court determines that it is in the best
interests of the
ward or conservatee to do so.
(d) The hearing shall be conducted in as
informal a manner as may
be consistent with orderly procedure. The court shall have the
authority
to receive all relevant and material evidence which may be offered,
in-
cluding the testimony or written report, findings or
recommendations of
any professional or other person who has familiarity with the ward
or
conservatee or the conservatee's estate. The court may review the
courts
prior orders, any guardianship plan or conservatorship plan filed
pursuant
to section 27 or 30, and amendments thereto, which is in effect,
and any
reports or accountings which have been filed by the guardian or
conser-
vator, or both, even if previously approved or allowed. The court
shall
give to the guardian or conservator, or both, to the ward or
conservatee,
and to other interested persons, the opportunity to present
evidence to
the court concerning the actions of the guardian or conservator, or
both,
and of the recommendations of such persons.
(e) At the conclusion of the hearing, if
the court finds, by a prepon-
derance of the evidence, that the guardian or conservator, or both,
should
be permitted to resign, or should be removed for failure to fulfill
the
duties or responsibilities of being a guardian or conservator, or
for the
manner in which the guardian or conservator has exercised the
powers
or authorities granted to the guardian or conservator, the court
may so
order and in such case shall revoke the letters of guardianship or
conser-
vatorship, or both, previously issued pursuant to section 20, and
amend-
ments thereto. The court may appoint a successor guardian or
conser-
vator, or both. In making any such appointments, the court shall
act in
accordance with sections 19 and 20, and amendments thereto.
(f) If the court finds that the
conservator has innocently misused any
funds or assets of the conservatee's estate, the court shall order
the con-
servator to repay such funds or return such assets to the
conservatee's
estate. If the court finds that the conservator has embezzled or
converted
for the conservator's personal use any funds or assets of the
conservatee's
estate, the court shall find the conservator liable for double the
value of
those funds or assets, as provided for in K.S.A. 59-1704, and
amendments
thereto. In either case, the court may order the forfeiture of the
conser-
vator's bond, or such portion thereof as equals the value of such
funds or
assets, including any lost earnings and the costs of recovering
those funds
or assets, including reasonable attorney fees, as the court may
allow, and
may require of the surety satisfaction thereof. Neither the
conservator,
nor the conservator's estate or surety, shall be finally released
from such
bond until the satisfaction thereof.
New Sec. 40. (a) At any time the
court has reason to believe that the
guardian or conservator, or both, has failed to faithfully or
diligently carry
out such person's duties or responsibilities or to properly
exercise such
person's powers or authorities in a manner consistent with the
provisions
of section 26 or 29, and amendments thereto, or with any prior
order of
the court, the court may issue to the guardian or conservator, or
both, an
order to appear before the court at a specified date, time and
place to
show just cause why the court should not find that such person has
failed
to faithfully or diligently carry out such person's duties or
responsibilities
or to properly exercise such person's powers or authorities.
(b) At such hearing, the court shall give
to the guardian or conser-
vator, or both, the opportunity to present evidence concerning
their ac-
tions. The court shall also have the authority to receive all
relevant and
material evidence which may be offered by other interested parties,
in-
cluding the testimony or written report, findings or
recommendations of
any professional or other person who has familiarity with the ward
or
conservatee, or the conservatee's estate. The court may review the
court's
prior orders, any guardianship plan or conservatorship plan filed
pursuant
to section 27 or 30, and amendments thereto, which is in effect,
and any
reports or accountings which have been filed by the guardian or
conser-
vator, or both, even if previously approved or allowed.
(c) At the conclusion of the hearing, if
the court finds, by a prepon-
derance of the evidence, that the guardian or conservator, or both,
has
failed to faithfully or diligently carry out such person's duties
or respon-
sibilities or to properly exercise such person's powers or
authorities, the
court may remove the guardian or conservator, or both, and in such
case,
the court shall revoke the letters of guardianship or
conservatorship, or
both, previously issued pursuant to section 20, and amendments
thereto.
Otherwise, the court may issue appropriate orders further directing
the
guardian or conservator, or both, with regard to the performance of
such
person's duties or responsibilities or the exercise of such
person's powers
or authorities, or the court may dismiss the proceedings.
(d) If the court finds that the guardian
or conservator has innocently
misused any funds or assets of the ward's or conservatee's estate,
the court
shall order the guardian or conservator to repay such funds or
return such
assets to the ward's or conservatee's estate. If the court finds
that the
guardian or conservator has embezzled or converted for such
person's
personal use any funds or assets of the ward's or conservatee's
estate, the
court shall find the guardian or conservator liable for double the
value of
those funds or assets, as provided for in K.S.A. 59-1704, and
amendments
thereto, and in such case, neither the guardian or conservator, or
the
guardian's or conservator's estate, shall be finally released until
the sat-
isfaction thereof. In either case, the court may order the
forfeiture of the
conservator's bond, or such portion thereof as equals the value of
such
funds or assets, including any lost earnings and the costs of
recovering
those funds or assets, including reasonable attorney fees, as the
court may
allow, and may require of the surety satisfaction thereof, and in
such case
the court shall not finally release the conservator's surety until
such order
has been satisfied.
(e) If the guardian or conservator, or
both, fail or refuse to appear as
ordered, the court may proceed as provided for in article 12 of
chapter
20 of the Kansas Statutes Annotated or K.S.A. 59-2217a, and
amendments
thereto.
New Sec. 41. (a) The ward or
conservatee may at any time file a
verified petition with the court requesting that the court find
that the
ward or conservatee is no longer impaired, and request that the
court
restore the ward or conservatee to capacity.
(b) The petition shall include:
(1) The ward's or conservatee's name,
age, date of birth, address of
permanent residence, and present address or whereabouts, if
different
from the ward's or conservatee's permanent residence;
(2) the name and address of the ward's or
conservatee's court ap-
pointed guardian or conservator, or both;
(3) the factual basis upon which the ward
or conservatee alleges that
they are no longer impaired;
(4) the names and addresses of the
witnesses by whom the truth of
the petition may be proved; and
(5) a request that the court find that
the ward or conservatee is no
longer impaired, and therefore entitled to be restored to
capacity.
(c) (1) Upon the filing of such a
petition, the court shall review the
petition to determine whether good cause exists to warrant further
pro-
ceedings. If the court finds good cause to warrant further
proceedings,
the court shall issue an order fixing the date, time and place of a
hearing
on the petition, which hearing shall be held not later than 30 days
follow-
ing the filing of the petition. If the court does not find within
the petition
facts sufficient to constitute good cause to warrant further
proceedings,
the court nonetheless may issue an order for an examination and
evalu-
ation of the ward or conservatee to determine if there is
sufficient cause
for further proceedings. The court may order the ward or
conservatee to
submit to such an examination and evaluation to be conducted
through
a general hospital, psychiatric hospital, community mental health
center,
community developmental disability organization, or by a private
physi-
cian, psychiatrist, psychologist or other person appointed by the
court
who is qualified to examine and evaluate the ward or conservatee.
The
costs of this examination and evaluation shall be assessed as
provided for
in section 45, and amendments thereto.
(2) If the court does not find good cause
to warrant further proceed-
ings and the court does not issue an order for an examination and
eval-
uation, or if the court has within the past six months conducted
either
the trial upon the original petition provided for in section 18,
and amend-
ments thereto, or a hearing on a previous petition for restoration,
the
court may decline to set a hearing on the petition and may dismiss
the
petition without further proceedings.
(d) If the court orders an examination
and evaluation, and the report
of that examination and evaluation contains information upon which
the
court finds good cause to warrant further proceedings, the court
shall
issue an order fixing the date, time and place of a hearing on the
petition,
which hearing shall be held not later than 30 days following
receipt of
the report of the examination and evaluation. Otherwise, the court
may
dismiss the petition without further proceedings.
(e) The court may at any time on its own
motion issue an order fixing
the date, time and place of a hearing on whether the ward or
conservatee
should be restored to capacity.
(f) If the court issues an order setting
the petition for a hearing, or
issues an order on its own motion, the court may issue the
following:
(1) An order appointing an attorney to
represent the ward or conser-
vatee in this matter, similarly as provided for in subsection
(a)(3) of section
14, and amendments thereto;
(2) an order requiring that the ward or
conservatee appear at the time
and place of the hearing on the petition. If an order to appear is
entered,
but is later rescinded, the court shall enter in the record of the
proceed-
ings the facts upon which the court found subsequent to the
issuance of
the order that the presence of the ward or conservatee should be
excused;
(3) a notice of the hearing to the
guardian or conservator, or both,
and to other interested parties. The court may order the attorney
for the
ward or conservatee, or another appropriate person, to serve this
notice
as the court may direct;
(4) an order of referral for hearing to
the district court of the county
of residence of the ward or conservatee, or of the county wherein
the
ward or conservatee may be found, except that no order of referral
for
hearing shall be issued if objected to by the ward or conservatee.
The
district court to which an order of referral for hearing is made
shall pro-
ceed in the case as if the petition for restoration had been filed
therein,
except that upon completion of the hearing the court shall transmit
the
findings of the court, along with any statement of the costs
incurred, and
a certified copy of all pleadings filed and orders entered during
the course
of the referral, to the original court having venue. Thereafter,
the original
court shall proceed as provided for under this act;
(5) for good cause shown, an order of
continuance of the hearing;
(6) for good cause shown, an order of
advancement of the hearing;
and
(7) for good cause shown, an order
changing the place of the hearing.
(g) The hearing upon the petition, or the
court's own motion, shall
be conducted in as informal a manner as may be consistent with
orderly
procedure. The court shall have the authority to receive all
relevant and
material evidence which may be offered, including the testimony or
writ-
ten report, findings or recommendations of any professional or
other per-
son who has familiarity with the ward or conservatee.
(h) At the conclusion of the hearing, if
the court does not find, by
clear and convincing evidence, that the ward or conservatee is
impaired,
the court shall order that the ward or conservatee is restored to
capacity
and shall proceed to terminate the guardianship or conservatorship,
or
both, as provided for in subsection (i) or (j) of section 42, and
amendments
thereto. Otherwise, the court shall make such further orders in the
guard-
ianship or conservatorship, or both, as may be appropriate under
this act.
New Sec. 42. (a) At any time
following the appointment of a guardian
or a conservator, any person, including the ward or conservatee,
may file
a verified petition with the court requesting that the court find
that the
ward or conservatee is no longer in need of a guardian or a
conservator,
or both, and requesting that the court terminate the guardianship
or con-
servatorship, or both.
(b) The petition shall include:
(1) The petitioner's name and address,
and if the petitioner is the
ward's or conservatee's court appointed guardian or conservator, or
both,
that fact;
(2) the ward's or conservatee's name,
age, date of birth, address of
permanent residence, and present address or whereabouts, if
different
from the ward's or conservatee's permanent residence;
(3) the name and address of the ward's or
conservatee's court ap-
pointed guardian or conservator, or both, if different from the
petitioner;
(4) the factual basis upon which the
petitioner alleges that the ward
or conservatee is no longer in need of a guardian or conservator,
or both;
(5) the names and addresses of the
witnesses by whom the truth of
the petition may be proved; and
(6) a request that the court find that
the ward or conservatee is no
longer in need of a guardian or conservator, or both, and that the
court
terminate the guardianship or conservatorship, or both.
(c) (1) Upon the filing of such a
petition, the court shall review the
petition to determine whether good cause exists to warrant further
pro-
ceedings. If the court finds good cause to warrant further
proceedings,
the court shall issue an order fixing the date, time and place of a
hearing
on the petition, which hearing shall be held not later than 30 days
follow-
ing the filing of the petition. If the court does not find within
the petition
facts sufficient to constitute good cause to warrant further
proceedings,
the court nonetheless may issue an order for an investigation and
report
concerning the circumstances of the ward or conservatee. The court
may
appoint any qualified person to conduct this investigation. The
costs of
this investigation shall be assessed as provided for in section 45,
and
amendments thereto.
(2) If the court does not find good cause
to warrant further proceed-
ings and the court does not issue an order for an investigation and
report,
or if the court has within the past six months conducted either the
trial
upon the original petition provided for in section 18, and
amendments
thereto, or a hearing on a previous petition for termination, the
court may
decline to set a hearing on the petition and may dismiss the
petition
without further proceedings.
(d) If the court orders an investigation,
and the report of that inves-
tigation contains information upon which the court finds good cause
to
warrant further proceedings, the court shall issue an order fixing
the date,
time and place of a hearing on the petition, which hearing shall be
held
not later than 30 days following receipt of the report of the
investigation.
Otherwise, the court may dismiss the petition without further
proceed-
ings.
(e) The court may at any time on its own
motion issue an order fixing
the date, time and place of a hearing on whether the guardianship
or
conservatorship, or both, should be terminated.
(f) If the court issues an order setting
the petition for a hearing, or
issues an order on its own motion, the court may issue the
following:
(1) An order appointing an attorney to
represent the ward or conser-
vatee in this matter, similarly as provided for in subsection
(a)(3) of section
14, and amendments thereto;
(2) a notice of the hearing to the
guardian or conservator, or both,
and to other interested parties. The court may order the
petitioner, or
another appropriate person, to serve this notice as the court may
direct;
(3) for good cause shown, an order of
continuance of the hearing;
(4) for good cause shown, an order of
advancement of the hearing;
and
(5) for good cause shown, an order
changing the place of the hearing.
(g) The hearing upon the petition, or the
court's own motion, shall
be conducted in as informal a manner as may be consistent with
orderly
procedure. The court shall have the authority to receive all
relevant and
material evidence which may be offered, including the testimony or
writ-
ten report, findings or recommendations of any professional or
other per-
son who has familiarity with the ward or conservatee or the
conservatee's
estate.
(h) At the conclusion of the hearing, if
the court does not find, by
clear and convincing evidence, that the ward or conservatee is in
need of
a guardian or conservator, or both, the court shall order that the
guardi-
anship or conservatorship, or both, be terminated as provided for
herein.
The court may assign to the guardian or conservator additional
respon-
sibilities, duties, powers or authorities as the court determines
appropri-
ate to facilitate the closure of the guardianship or
conservatorship, or
both, including, if the ward or conservatee is deceased, authority
to the
guardian or conservator to pay from the ward's or conservatee's
estate
any reasonable funeral expenses, any medical expenses from the
ward's
or conservatee's last illness, and any claim for medical assistance
paid for
pursuant to K.S.A. 39-709, and amendments thereto, with due regard
to
the rights of a surviving spouse, if any, and creditors.
(i) Upon the court ordering that the
guardianship be terminated, the
guardian shall give any necessary notices with regard to the
termination
of the guardian's authority, shall assist the ward to establish an
independ-
ent residence, if applicable, and shall file a final report with
the court
concerning the actions of the guardian. The court shall review the
report
and if the court finds matters in order, the court shall approve
this final
report and shall finally discharge the guardian.
(j) Upon the court ordering that the
conservatorship be terminated,
the conservator shall take any necessary action to close the
conservator's
administration of the conservatee's estate, and to deliver the
property and
assets of the conservatee's estate to the conservatee or otherwise
as the
court may direct. If the conservatee is deceased, and the funeral
and last
illness expenses, payment of any claim for medical expenses paid
pursuant
to K.S.A. 39-709, and amendments thereto, payment of the fees of
the
conservator as the court may allow, and payment of the costs of the
final
accounting and closing of the conservatee's estate, will deplete
the estate,
the conservator shall show such depletion on the final accounting.
If such
expenses will not deplete the estate, the remaining property and
assets
of the conservatee's estate shall be delivered by the conservator
to the
appropriate person or agency as determined by the court, and the
con-
servator shall report such fact to the court in a final accounting.
Upon the
filing of a final accounting, and presentation to the court of a
receipt for
such property and assets, if the court approves, allows and settles
this
final accounting pursuant to the provisions of section 37, and
amendments
thereto, the court shall finally discharge the conservator and the
conser-
vator's surety. Neither the conservator, nor the conservator's
estate or
surety, shall be finally discharged until all of the property and
assets of
the conservatee's estate have been dispersed as directed by the
court.
New Sec. 43. (a) The court at any
time may enter an order summarily
terminating the guardianship in any of the following
circumstances:
(1) the ward is deceased;
(2) the ward, who was a minor and not
adjudicated to be a minor
with an impairment which would otherwise make that minor an
adult
with an impairment in need of a guardian, has become 18 years of
age,
has had the rights of majority conferred upon them pursuant to
K.S.A.
38-108, and amendments thereto, or is now considered to be of the
age
of majority pursuant to K.S.A. 38-101, and amendments thereto;
or
(3) no further need for the guardianship
exists.
(b) At any time the court may enter an
order summarily terminating
the conservatorship in any of the following circumstances:
(1) The conservatee is deceased and the
court has issued orders con-
sistent with the requirements of subsection (j) of section 42, and
amend-
ments thereto, as applicable; or
(2) no further need for the
conservatorship exists and the court has
issued orders consistent with the requirements of subsection (j) of
section
42, and amendments thereto.
(c) At any time the court may enter an
order summarily terminating
the voluntary conservatorship in any of the following
circumstances;
(1) The conservatee has filed a verified
petition pursuant to section
42, and amendments thereto, requesting the termination of the
conser-
vatorship and the court has issued orders consistent with the
require-
ments of subsection (j) of section 42, and amendments thereto, as
appli-
cable;
(2) the conservatee has been adjudicated
an adult with an impairment
in need of a conservator by a court of competent jurisdiction
either within
this or another state, and the court has issued orders consistent
with the
requirements of subsection (j) of section 42, and amendments
thereto, as
applicable;
(3) no further need for the
conservatorship exists and the court has
issued orders consistent with the requirements of subsection (j) of
section
42, and amendments thereto, as applicable; or
(4) the conservatee is deceased and the
court has issued orders con-
sistent with the requirements of subsection (j) of section 42, and
amend-
ments thereto, as applicable.
New Sec. 44. (a) The court at any
time, upon the request of any party
or upon the court's own motion, may issue a written order directing
that
any medical or treatment records, evaluations or investigative
reports filed
with the court, attached to any pleading, produced in response to
any
order issued by the court, or introduced in evidence, shall be
separately
maintained in a confidential manner, to be disclosed only:
(1) Upon the written consent or request
of the proposed ward or
proposed conservatee, if no guardian or conservator is appointed by
the
court;
(2) upon the written consent of the
guardian or conservator;
(3) upon the written consent of the
former ward or former conser-
vatee, if restored to capacity pursuant to section 41, and
amendments
thereto;
(4) upon the order of any court of record
after a determination has
been made by the court that such records or reports are necessary
for
the conduct of proceedings before the court and are otherwise
admissible
as evidence;
(5) to any state or national
accreditation agency or for a scholarly
study, but the court shall require, before such disclosure is made,
a pledge
from that state or national accreditation agency or scholarly
investigator
that such agency or investigator will not disclose the name of any
patient
or former patient to any person not otherwise authorized by law to
receive
such information; or
(6) in proceedings under this act, upon
the written request of any
attorney representing any party.
(b) To the extent the provisions of
K.S.A. 65-5601 through 65-5605,
or K.S.A. 2001 Supp. 59-2979 or 59-29b79, and amendments thereto,
are
applicable to medical or treatment records of any patient or former
pa-
tient who may be the subject of proceedings under this act, the
provisions
of K.S.A. 65-5601 through 65-5605 or K.S.A. 2001 Supp. 59-2979 or
59-
29b79, and amendments thereto, as applicable, shall control the
dispo-
sition of information contained in such records. Willful violation
of this
section is a class C misdemeanor.
New Sec. 45. (a) In each proceeding
the court shall allow and order
paid to any individual or institution as a part of the costs
thereof a rea-
sonable fee and expenses for any professional services ordered
performed
by the court pursuant to this act other than those performed by any
in-
dividual or institution under the jurisdiction of the department of
social
and rehabilitation services, but including the fee of counsel for
the pro-
posed ward or proposed conservatee or ward or conservatee when
counsel
is appointed by the court. The court may allow and order paid the
fee of
counsel for the petitioner and any respondent. Other costs and fees
may
be allowed and paid as are allowed by law for similar services in
other
cases. The costs shall be taxed to the estate of the proposed ward
or
proposed conservatee or ward or conservatee, to those bound by law
to
support the proposed ward or proposed conservatee or ward or
conser-
vatee, to other parties whenever it would be just and equitable to
do so,
or to the county of residence of the proposed ward or proposed
conser-
vatee or ward or conservatee as the court having venue shall
direct.
(b) In any contested proceeding or matter
the court, in its discretion,
may require one or more parties to give security for the costs
thereof, or
in lieu thereof to file a poverty affidavit as provided for in the
code of
civil procedure.
(c) Any district court receiving a
statement of costs from another
district court shall approve the same for payment out of the
general fund
of its county except that it may refuse to approve the same for
payment
only on the grounds that the proposed ward or proposed conservatee
or
ward or conservatee is not a resident of that county. In such case
it shall
transmit the statement of costs to the secretary of social and
rehabilitation
services who shall determine the question of residence and certify
those
findings to each district court. If the claim for costs is not paid
within 30
days after such certification, an action may be maintained thereon
by the
claimant county in the district court of the claimant county
against the
debtor county. The findings made by the secretary of social and
rehabil-
itation services as to the residence of the proposed ward or
proposed
conservatee or ward or conservatee shall be applicable only to the
as-
sessment of costs. Any county of residence which pays from its
general
fund court costs to the district court of another county may
recover the
same in any court of competent jurisdiction from the estate of the
pro-
posed ward or proposed conservatee or ward or conservatee or from
those
bound by law to support the proposed ward or proposed conservatee
or
ward or conservatee, unless the court finds that the proceedings in
which
such costs were incurred were instituted without good cause and not
in
good faith.
New Sec. 46. (a) Any person who has
been adjudged a disabled per-
son prior to the effective date of this act and who has not been
restored
to capacity, for the purposes of this act, shall be considered to
be either:
(1) An adult with an impairment in need
of a guardian or conservator,
or both;
(2) a minor in need of a guardian or
conservator, or both;
(3) a minor with an impairment in need of
a guardian or conservator,
or both;
(4) a person previously adjudged as
impaired in another state; or
(5) a person in need of an ancillary
conservator.
(b) Within one year from the effective
date of this act, any person
with an interest in the matter may file a verified petition
requesting that
the court determine whether the ward or conservatee meets the
defini-
tion of impaired as contained within this act, or meets the
requirements
of being in need of a guardian or conservator. Thereafter, all
proceedings
shall be as provided for in this act.
(c) No act of a guardian or conservator
performed prior to the effec-
tive date of this act, which was performed in compliance with any
pro-
vision of the act for obtaining a guardian or conservator, or both,
in effect
prior to the effective date of this act, shall be deemed unlawful
because
of any provision of this act.
(d) Upon and after the effective date of
this act, all acts of any guard-
ian or conservator appointed by any court prior to the effective
date of
this act shall comply with the provisions of this act.
Sec. 47. K.S.A. 9-1215 is hereby
amended to read as follows: 9-1215.
Subject to the provisions of this section and K.S.A. 9-1216 and
amend-
ments thereto, an individual adult or minor, hereafter referred to
as the
owner, may enter into a written contract with any bank located in
this
state providing that the balance of the owner's deposit account, or
the
balance of the owner's legal share of a deposit account, at the
time of
death of the owner shall be made payable on the death of the owner
to
one or more persons or, if the persons predecease the owner, to
another
person or persons, hereafter referred to as the beneficiary or
benefici-
aries. If any beneficiary is a minor at the time the account, or
any portion
of the account, becomes payable to the beneficiary and the balance,
or
portion of the balance, exceeds the amount specified by
K.S.A. 59-3003
section 4, and amendments thereto, the moneys shall be
payable only to
a conservator of the minor beneficiary.
Transfers pursuant to this section shall not
be considered testamentary
or be invalidated due to nonconformity with the provisions of
chapter 59
of the Kansas Statutes Annotated.
Every contract authorized by this section
shall be considered to contain
a right on the part of the owner during the owner's lifetime both
to
withdraw funds on deposit in the account in the manner provided in
the
contract, in whole or in part, as though no beneficiary has been
named,
and to change the designation of beneficiary. The interest of the
bene-
ficiary shall be considered not to vest until the death of the
owner and,
if there is a claim pursuant to subsection (g) of K.S.A. 39-709 and
amend-
ments thereto, until such claim is satisfied.
No change in the designation of the
beneficiary shall be valid unless
executed in the form and manner prescribed by the bank and
delivered
to the bank prior to the death of the owner.
For the purposes of this section, the balance
of the owner's deposit
account or the balance of the owner's legal share of a deposit
account
shall not be construed to include any portion of the account which
under
the law of joint tenancy is the property of another joint tenant of
the
account upon the death of the owner.
As used in this section, ``person'' means any
individual, individual or
corporate fiduciary or nonprofit religious or charitable
organization as
defined by K.S.A. 79-4701, and amendments thereto.
Sec. 48. K.S.A. 9-1216 is hereby
amended to read as follows: 9-1216.
When the owner and the bank have entered into a contract
authorized
in K.S.A. 9-1215, and amendments thereto, the owner's deposit
account
subject to the contract or any part of or interest on the account
shall be
paid by the bank to the owner or pursuant to the owner's order
during
the owner's lifetime. On the owner's death, the deposit account or
any
part of or interest on the account shall be paid by the bank to the
secretary
of social and rehabilitation services for a claim pursuant to
subsection (g)
of K.S.A. 39-709 and amendments thereto or, if there is no such
claim or
if any portion of the account remains after such claim is
satisfied, to the
designated beneficiary or beneficiaries. If any designated
beneficiary is a
minor at the time the account, or any portion of the account,
becomes
payable to the beneficiary and the balance, or portion of the
balance,
exceeds the amount specified by K.S.A. 59-3003
section 4, and amend-
ments thereto, the bank shall pay the moneys or any interest on
them
only to a conservator of the minor beneficiary. The receipt of the
con-
servator shall release and discharge the bank for the payment.
Sec. 49. K.S.A. 17-2263 is hereby
amended to read as follows: 17-
2263. Subject to the provisions of this section and K.S.A. 17-2264
and
amendments thereto, an individual adult or minor, hereafter
referred to
as the shareholder, may enter into a written contract with any
credit union
located in this state providing that the balance of the
shareholder's ac-
count, or the balance of the shareholder's legal share of an
account, at
the time of death of the shareholder shall be made payable on the
death
of the shareholder to one or more persons or, if the persons
predecease
the owner, to another person or persons, hereafter referred to as
the
beneficiary or beneficiaries. If any beneficiary is a minor at the
time the
account, or any portion of the account, becomes payable to the
beneficiary
and the balance, or portion of the balance, exceeds the amount
specified
by K.S.A. 59-3003 section 4, and amendments
thereto, the moneys shall
be payable only to a conservator of the minor beneficiary.
Transfers pursuant to this section shall not
be considered testamentary
or be invalidated due to nonconformity with the provisions of
chapter 59
of the Kansas Statutes Annotated.
Every contract authorized by this section
shall be considered to contain
a right on the part of the shareholder during the shareholder's
lifetime
both to withdraw funds on deposit in the account in the manner
provided
in the contract, in whole or in part, as though no beneficiary has
been
named, and to change the designation of beneficiary. The interest
of the
beneficiary shall be considered not to vest until the death of the
share-
holder and, if there is a claim pursuant to subsection (g) of
K.S.A. 39-709
and amendments thereto, until such claim is satisfied.
No change in the designation of the
beneficiary shall be valid unless
executed in the form and manner prescribed by the credit union
and
delivered to the credit union prior to the death of the
shareholder.
For the purposes of this section, the balance
of the shareholder's ac-
count or the balance of the shareholder's legal share of an account
shall
not be construed to include any portion of the account which under
the
law of joint tenancy is the property of another joint tenant of the
account
upon the death of the owner.
As used in this section, ``person'' means any
individual, individual or
corporate fiduciary or nonprofit religious or charitable
organization as
defined by K.S.A. 79-4701 and amendments thereto.
Sec. 50. K.S.A. 17-2264 is hereby
amended to read as follows: 17-
2264. When the shareholder and the credit union have entered into
a
contract authorized in K.S.A. 17-2263 and amendments thereto,
the
shareholder's account subject to the contract or any part of or
interest on
the account shall be paid by the credit union to the shareholder or
pur-
suant to the shareholder's order during the shareholder's lifetime.
On the
shareholder's death, the deposit account or any part of or interest
on the
account shall be paid by the credit union to the secretary of
social and
rehabilitation services for a claim pursuant to subsection (g) of
K.S.A. 39-
709 and amendments thereto or, if there is no such claim or if any
portion
of the account remains after such claim is satisfied, to the
designated
beneficiary or beneficiaries. If any designated beneficiary is a
minor at
the time the account, or any portion of the account, becomes
payable to
the beneficiary and the balance, or portion of the balance, exceeds
the
amount specified by K.S.A. 59-3003 section
4, and amendments thereto,
the credit union shall pay the moneys or any interest on them only
to a
conservator of the minor beneficiary. The receipt of the
conservator shall
release and discharge the credit union for the payment.
Sec. 51. K.S.A. 17-5828 is hereby
amended to read as follows: 17-
5828. Subject to the provisions of this section and K.S.A. 17-5829
and
amendments thereto, an individual adult or minor, hereafter
referred to
as the owner, may enter into a written contract with any savings
and loan
association located in this state providing that the balance of the
owner's
deposit account, or the balance of the owner's legal share of a
deposit
account, at the time of death of the owner shall be made payable on
the
death of the owner to one or more persons or, if the persons
predecease
the owner, to another person or persons, hereafter referred to as
the
beneficiary or beneficiaries. If any beneficiary is a minor at the
time the
account, or any portion of the account, becomes payable to the
beneficiary
and the balance, or portion of the balance, exceeds the amount
specified
by K.S.A. 59-3003 section 4, and amendments
thereto, the moneys shall
be payable only to a conservator of the minor beneficiary.
Transfers pursuant to this section shall not
be considered testamentary
or be invalidated due to nonconformity with the provisions of
chapter 59
of the Kansas Statutes Annotated.
Every contract authorized by this section
shall be considered to contain
a right on the part of the owner during the owner's lifetime both
to
withdraw funds on deposit in the account in the manner provided in
the
contract, in whole or in part, as though no beneficiary has been
named,
and to change the designation of beneficiary. The interest of the
bene-
ficiary shall be considered not to vest until the death of the
owner and,
if there is a claim pursuant to subsection (g) of K.S.A. 39-709 and
amend-
ments thereto, until such claim is satisfied.
No change in the designation of the
beneficiary shall be valid unless
executed in the form and manner prescribed by the savings and
loan
association and delivered to the savings and loan association prior
to the
death of the owner.
For the purposes of this section, the balance
of the owner's deposit
account or the balance of the owner's legal share of a deposit
account
shall not be construed to include any portion of the account which
under
the law of joint tenancy is the property of another joint tenant of
the
account upon the death of the owner.
As used in this section, ``person'' means any
individual, individual or
corporate fiduciary or nonprofit religious or charitable
organization as
defined by K.S.A. 79-4701 and amendments thereto.
Sec. 52. K.S.A. 17-5829 is hereby
amended to read as follows: 17-
5829. When the owner and the savings and loan association have
entered
into a contract authorized in K.S.A. 17-5828 and amendments
thereto,
the owner's deposit account subject to the contract or any part of
or
interest on the account shall be paid by the savings and loan
association
to the owner or pursuant to the owner's order during the owner's
lifetime.
On the owner's death, the deposit account or any part of or
interest on
the account may be paid by the savings and loan association to the
sec-
retary of social and rehabilitation services for a claim pursuant
to subsec-
tion (g) of K.S.A. 39-709 and amendments thereto or, if there is no
such
claim or if any portion of the account remains after such claim is
satisfied,
to the designated beneficiary or beneficiaries. If any designated
benefi-
ciary is a minor at the time the account, or any portion of the
account,
becomes payable to the beneficiary and the balance, or portion of
the
balance, exceeds the amount specified by K.S.A.
59-3003 section 4, and
amendments thereto, the savings and loan association shall pay the
mon-
eys or any interest on them only to a conservator of the minor
beneficiary.
The receipt of the conservator shall release and discharge the
savings and
loan association for the payment.
Sec. 53. K.S.A. 38-1505 is hereby
amended to read as follows: 38-
1505. (a) Appointment of guardian ad litem; duties. Upon the
filing of a
petition the court shall appoint a person who is an attorney to
serve as
guardian ad litem for a child who is the subject of
proceedings under this
code. The guardian ad litem shall make an independent
investigation of
the facts upon which the petition is based and shall appear for and
rep-
resent the child.
(b) Attorney for parent or
custodian. A parent or custodian of a child
alleged or adjudged to be a child in need of care may be
represented by
an attorney, other than the guardian ad litem appointed for
the child, in
connection with all proceedings under this code. If at any stage of
the
proceedings a parent desires but is financially unable to employ an
attor-
ney, the court shall appoint an attorney for the parent. It shall
not be
necessary to appoint an attorney to represent a parent who fails or
refuses
to attend the hearing after having been properly served with
process in
accordance with K.S.A. 38-1534 and amendments thereto. A parent
or
custodian who is not a minor, a mentally ill person as defined in
K.S.A.
2001 Supp. 59-2946 and amendments thereto or a disabled person
as
defined in K.S.A. 59-3002 77-201 and
amendments thereto may waive
counsel either in writing or on the record.
(c) Attorney for parent who is a
minor, mentally ill or disabled. The
court shall appoint an attorney for a parent who is a minor, a
mentally ill
person as defined in K.S.A. 59-2902 2001 Supp.
59-2946 and amend-
ments thereto or a disabled person as defined in K.S.A.
59-3002 77-201
and amendments thereto, unless the court determines that there is
an
attorney retained who will appear and represent the interests of
the per-
son in the proceedings under this code.
(d) Continuation of
representation. A guardian ad litem appointed for
a child or an attorney appointed for a parent or custodian shall
continue
to represent the client at all subsequent hearings in proceedings
under
this code, including any appellate proceedings, unless relieved by
the
court upon a showing of good cause or upon transfer of venue.
(e) Fees for counsel. A guardian
ad litem or attorney appointed for
parties to proceedings under this section shall be allowed a
reasonable
fee for their services, which may be assessed as an expense in the
pro-
ceedings as provided in K.S.A. 38-1511 and amendments thereto.
Sec. 54. K.S.A. 39-789 is hereby
amended to read as follows: 39-789.
Assistance shall not be withheld from any institutionalized person
or any
person seeking home and community based services who would
otherwise
qualify for assistance under this act but who, by reason of
disability being
a disabled person as defined by K.S.A.
59-3002 77-201, and amendments
thereto, is unable to give the consent prerequisite to the property
and
income transfers described in this act, provided that the spouse of
the
individual seeking assistance seeks a court order of maintenance,
an order
of conservatorship or of property and income division pursuant to
this act
within one year from the beginning of the first benefit period.
Sec. 55. K.S.A. 2001 Supp. 39-970
is hereby amended to read as
follows: 39-970. (a) (1) No person shall knowingly operate an
adult care
home if, in the adult care home, there works any person who has
been
convicted of or has been adjudicated a juvenile offender because of
having
committed an act which if done by an adult would constitute the
com-
mission of capital murder, pursuant to K.S.A. 21-3439 and
amendments
thereto, first degree murder, pursuant to K.S.A. 21-3401 and
amend-
ments thereto, second degree murder, pursuant to subsection (a)
of
K.S.A. 21-3402 and amendments thereto, voluntary manslaughter,
pur-
suant to K.S.A. 21-3403 and amendments thereto, assisting suicide
pur-
suant to K.S.A. 21-3406 and amendments thereto, mistreatment of a
de-
pendent adult, pursuant to K.S.A. 21-3437 and amendments
thereto,
rape, pursuant to K.S.A. 21-3502 and amendments thereto, indecent
lib-
erties with a child, pursuant to K.S.A. 21-3503 and amendments
thereto,
aggravated indecent liberties with a child, pursuant to K.S.A.
21-3504 and
amendments thereto, aggravated criminal sodomy, pursuant to K.S.A.
21-
3506 and amendments thereto, indecent solicitation of a child,
pursuant
to K.S.A. 21-3510 and amendments thereto, aggravated indecent
solici-
tation of a child, pursuant to K.S.A. 21-3511 and amendments
thereto,
sexual exploitation of a child, pursuant to K.S.A. 21-3516 and
amend-
ments thereto, sexual battery, pursuant to K.S.A. 21-3517 and
amend-
ments thereto, or aggravated sexual battery, pursuant to K.S.A.
21-3518
and amendments thereto, an attempt to commit any of the crimes
listed
in this subsection (a)(1), pursuant to K.S.A. 21-3301, and
amendments
thereto, a conspiracy to commit any of the crimes listed in this
subsection
(a)(1), pursuant to K.S.A. 21-3302, and amendments thereto, or
criminal
solicitation of any of the crimes listed in this subsection (a)(1),
pursuant
to K.S.A. 21-3303, and amendments thereto, or similar statutes of
other
states or the federal government.
(2) A person operating an adult care
home may employ an applicant
who has been convicted of any of the following if five or more
years have
elapsed since the applicant satisfied the sentence imposed or was
dis-
charged from probation, a community correctional services program,
pa-
role, postrelease supervision, conditional release or a suspended
sentence;
or if five or more years have elapsed since the applicant has been
finally
discharged from the custody of the commissioner of juvenile justice
or
from probation or has been adjudicated a juvenile offender,
whichever
time is longer: A felony conviction for a crime which is described
in: (A)
article 34 of chapter 21 of the Kansas Statutes Annotated and
amend-
ments thereto, except those crimes listed in subsection (a)(1); (B)
articles
35 or 36 of chapter 21 of the Kansas Statutes Annotated and
amendments
thereto, except those crimes listed in subsection (a)(1) and K.S.A.
21-
3605 and amendments thereto; (C) an attempt to commit any of
the
crimes listed in this subsection (a)(2) pursuant to K.S.A. 21-3301,
and
amendments thereto; (D) a conspiracy to commit any of the crimes
listed
in subsection (a)(2) pursuant to K.S.A. 21-3302, and amendments
thereto;
(E) criminal solicitation of any of the crimes listed in subsection
(a)(2)
pursuant to K.S.A. 21-3303, and amendments thereto; or (F) similar
stat-
utes of other states or the federal government.
(b) No person shall operate an adult care
home if such person has
been found to be a disabled person in need of a
guardian or conservator,
or both as provided in sections 1 through 46, and amendments
thereto.
(c) The secretary of health and
environment shall have access to any
criminal history record information in the possession of the Kansas
bureau
of investigation regarding felony convictions, convictions under
K.S.A. 21-
3437 and 21-3517, and amendments thereto, adjudications of a
juvenile
offender which if committed by an adult would have been a felony
con-
viction, and adjudications of a juvenile offender for an offense
described
in K.S.A. 21-3437 and 21-3517, and amendments thereto,
concerning
persons working in an adult care home. The secretary shall have
access
to these records for the purpose of determining whether or not the
adult
care home meets the requirements of this section. The Kansas bureau
of
investigation may charge to the department of health and
environment a
reasonable fee for providing criminal history record information
under
this subsection.
(d) For the purpose of complying with
this section, the operator of
an adult care home shall request from the department of health
and
environment information regarding only felony convictions,
convictions
under K.S.A. 21-3437 and 21-3517, and amendments thereto,
adjudica-
tions of a juvenile offender which if committed by an adult would
have
been a felony conviction, and adjudications of a juvenile offender
for an
offense described in K.S.A. 21-3437 and 21-3517, and amendments
thereto, and which relates to a person who works in the adult care
home,
or is being considered for employment by the adult care home, for
the
purpose of determining whether such person is subject to the
provision
of this section. For the purpose of complying with this section,
the op-
erator of an adult care home shall receive from any employment
agency
which provides employees to work in the adult care home written
certi-
fication that such employees are not prohibited from working in the
adult
care home under this section. For the purpose of complying with
this
section, information relating to convictions and adjudications by
the fed-
eral government or to convictions and adjudications in states other
than
Kansas shall not be required until such time as the secretary of
health
and environment determines the search for such information could
rea-
sonably be performed and the information obtained within a
two-week
period. For the purpose of complying with this section, a person
who
operates an adult care home may hire an applicant for employment on
a
conditional basis pending the results from the department of health
and
environment of a request for information under this subsection. No
adult
care home, the operator or employees of an adult care home or an
em-
ployment agency, or the operator or employees of an employment
agency,
shall be liable for civil damages resulting from any decision to
employ, to
refuse to employ or to discharge from employment any person based
on
such adult care home's compliance with the provisions of this
section if
such adult care home or employment agency acts in good faith to
comply
with this section.
(e) The secretary of health and
environment shall charge each person
requesting information under this section a fee equal to cost, not
to ex-
ceed $10, for each name about which an information request has
been
submitted to the department under this section.
(f) (1) The secretary of health and
environment shall provide each
operator requesting information under this section with the
criminal his-
tory record information concerning felony convictions and
convictions
under K.S.A. 21-3437 and 21-3517, and amendments thereto, in
writing
and within three working days of receipt of such information from
the
Kansas bureau of investigation. The criminal history record
information
shall be provided regardless of whether the information discloses
that the
subject of the request has been convicted of an offense enumerated
in
subsection (a).
(2) When an offense enumerated in
subsection (a) exists in the crim-
inal history record information, and when further confirmation
regarding
criminal history record information is required from the
appropriate court
of jurisdiction or Kansas department of corrections, the secretary
shall
notify each operator that requests information under this section
in writ-
ing and within three working days of receipt from the Kansas bureau
of
investigation that further confirmation is required. The secretary
shall
provide to the operator requesting information under this section
infor-
mation in writing and within three working days of receipt of such
infor-
mation from the appropriate court of jurisdiction or Kansas
department
of corrections regarding confirmation regarding the criminal
history rec-
ord information.
(3) Whenever the criminal history record
information reveals that the
subject of the request has no criminal history on record, the
secretary
shall provide notice to each operator requesting information under
this
section, in writing and within three working days after receipt of
such
information from the Kansas bureau of investigation.
(4) The secretary of health and
environment shall not provide each
operator requesting information under this section with the
juvenile crim-
inal history record information which relates to a person subject
to a
background check as is provided by K.S.A. 38-1618 and
amendments
thereto. The secretary shall notify the operator that requested the
infor-
mation, in writing and within three working days of receipt of such
in-
formation from the Kansas bureau of investigation, whether
juvenile
criminal history record information received pursuant to this
section re-
veals that the operator would or would not be prohibited by this
section
from employing the subject of the request for information.
(5) An operator who receives criminal
history record information un-
der this subsection (f) shall keep such information confidential,
except
that the operator may disclose such information to the person who
is the
subject of the request for information. A violation of this
paragraph (5)
shall be an unclassified misdemeanor punishable by a fine of
$100.
(g) No person who works for an adult care
home and who is currently
licensed or registered by an agency of this state to provide
professional
services in the state and who provides such services as part of the
work
which such person performs for the adult care home shall be subject
to
the provisions of this section.
(h) A person who volunteers in an adult
care home shall not be sub-
ject to the provisions of this section because of such volunteer
activity.
(i) No person who has been employed by
the same adult care home
for five consecutive years immediately prior to the effective date
of this
act shall be subject to the provisions of this section while
employed by
such adult care home.
(j) The operator of an adult care home
shall not be required under
this section to conduct a background check on an applicant for
employ-
ment with the adult care home if the applicant has been the subject
of a
background check under this act within one year prior to the
application
for employment with the adult care home. The operator of an adult
care
home where the applicant was the subject of such background check
may
release a copy of such background check to the operator of an adult
care
home where the applicant is currently applying.
(k) No person who is in the custody of
the secretary of corrections
and who provides services, under direct supervision in nonpatient
areas,
on the grounds or other areas designated by the superintendent of
the
Kansas soldiers' home or the Kansas veterans' home shall be subject
to
the provisions of this section while providing such services.
(l) For purposes of this section, the
Kansas bureau of investigation
shall only report felony convictions, convictions under K.S.A.
21-3437 and
21-3517, and amendments thereto, adjudications of a juvenile
offender
which if committed by an adult would have been a felony conviction,
and
adjudications of a juvenile offender for an offense described in
K.S.A. 21-
3437 and 21-3517, and amendments thereto, to the secretary of
health
and environment when a background check is requested.
(m) This section shall be part of and
supplemental to the adult care
home licensure act.
Sec. 56. K.S.A. 44-513a is hereby
amended to read as follows: 44-
513a. Whenever a minor person shall be entitled to compensation
under
the provisions of the workers compensation act, the administrative
law
judge is authorized to direct such compensation to be paid in
accordance
with K.S.A. 59-3001 et
seq. sections 1 through 46, and amendments
thereto.
Sec. 57. K.S.A. 58-629 is hereby
amended to read as follows: 58-629.
(a) A durable power of attorney for health care decisions may
convey to
the agent the authority to:
(1) Consent, refuse consent, or withdraw
consent to any care, treat-
ment, service or procedure to maintain, diagnose or treat a
physical or
mental condition, and to make decisions about organ donation,
autopsy,
and disposition of the body;
(2) make all necessary arrangements for
the principal at any hospital,
psychiatric hospital or psychiatric treatment facility, hospice,
nursing
home or similar institution; to employ or discharge health care
personnel
to include physicians, psychiatrists, psychologists, dentists,
nurses, ther-
apists or any other person who is licensed, certified, or otherwise
au-
thorized or permitted by the laws of this state to administer
health care
as the agent shall deem necessary for the physical, mental and
emotional
well being of the principal; and
(3) request, receive and review any
information, verbal or written,
regarding the principal's personal affairs or physical or mental
health in-
cluding medical and hospital records and to execute any releases of
other
documents that may be required in order to obtain such
information.
(b) The powers of the agent herein shall
be limited to the extent set
out in writing in the durable power of attorney for health care
decisions,
and shall not include the power to revoke or invalidate a
previously ex-
isting declaration by the principal in accordance with the natural
death
act. No agent powers conveyed pursuant to this section shall be
effective
until the occurrence of the principal's disability or
incapacity, as defined
in K.S.A. 59-3002 and amendments thereto,
impairment as determined
by the principal's attending physician, as defined in subsection
(a) of
K.S.A. 65-28,102 and amendments thereto, unless the durable power
of
attorney for health care decisions specifically provides otherwise.
Nothing
in this act shall be construed as prohibiting an agent from
providing treat-
ment by spiritual means through prayer alone and care consistent
there-
with, in lieu of medical care and treatment, in accordance with the
tenets
and practices of any church or religious denomination of which the
prin-
cipal is a member.
(c) In exercising the authority under the
durable power of attorney
for health care decisions, the agent has a duty to act consistent
with the
expressed desires of the principal.
(d) Neither the treating health care
provider, as defined by subsec-
tion (c) of K.S.A. 65-4921 and amendments thereto, nor an employee
of
the treating health care provider, nor an employee, owner, director
or
officer of a facility described subsection (a)(2) in K.S.A.
58-629(a)(2) may
be designated as the agent to make health care decisions under a
durable
power of attorney for health care decisions unless:
(1) Related to the principal by blood,
marriage or adoption; or
(2) the principal and agent are members
of the same community of
persons who are bound by vows to a religious life and who conduct
or
assist in the conduct of religious services and actually and
regularly engage
in religious, benevolent, charitable or educational ministrations
or the
performance of health care services.
(e) A durable power of attorney for
health care decisions shall be:
(1) Dated and signed in the presence of
two witnesses at least 18
years of age neither of whom shall be the agent, related to the
principal
by blood, marriage or adoption, entitled to any portion of the
estate of
the principal according to the laws of intestate succession of this
state or
under any will of the principal or codicil thereto, or directly
financially
responsible for the principal's health care; or
(2) acknowledged before a notary
public.
(f) Death of the principal shall not
prohibit or invalidate acts of the
agent in arranging for organ donation, autopsy or disposition of
body.
(g) Any person who in good faith acts
pursuant to the terms of a
durable power of attorney for health care decisions without
knowledge
of its invalidity shall be immune from liability that may be
incurred or
imposed from such action.
Sec. 58. K.S.A. 2001 Supp. 58-24a15
is hereby amended to read as
follows: 58-24a15. Conservators shall not invest funds under their
control
and management in investments other than those specifically
permitted
by K.S.A. 59-3019 section 29, and
amendments thereto, except upon the
entry of an order of a court of competent jurisdiction, after a
hearing on
a verified petition. Before authorizing any such investment, the
court shall
require evidence of value and advisability of such purchase.
Sec. 59. K.S.A. 59-1701 is hereby
amended to read as follows: 59-
1701. (a) No bank, savings and loan association or other
corporation shall
be appointed or authorized directly or indirectly to act as a
fiduciary in
this state except:
(1) A bank, savings and loan association
or other corporation organ-
ized under the laws of, and having its principal place of business
in, this
state;
(2) a national bank, federal savings bank
or federal savings and loan
association located in this state;
(3) a bank, savings and loan association
or other corporation organ-
ized under the laws of, and having its principal place of business
in, an-
other state which permits a bank, savings and loan association or
other
corporation which is similarly organized in this state to act in a
like fi-
duciary capacity in the other state under similar conditions;
(4) a national bank, federal savings bank
or federal savings and loan
association located in another state which permits a national bank,
federal
savings bank or federal savings and loan association located in
this state
to act in a like fiduciary capacity in the other state under
similar condi-
tions;
(5) a nonprofit corporation certified in
accordance with K.S.A. 59-
3037 section 21, and amendments thereto, to
the extent provided by that
statute; or
(6) as provided in K.S.A. 59-1707 and
59-1708, and amendments
thereto.
(b) No officer, employee or agent of a
bank, savings and loan asso-
ciation or corporation which is not authorized to act as a
fiduciary in this
state shall be permitted to act as a fiduciary, whether such
officer, em-
ployee or agent is a resident or a nonresident of this state, when
in fact
such officer, employee or agent is acting as a fiduciary on behalf
of such
bank, savings and loan association or corporation.
(c) No bank, savings and loan association
or other corporation, other
than a nonprofit corporation certified in accordance with
K.S.A. 59-3037
section 21, and amendments thereto, shall be appointed
guardian of the
person of a ward.
Sec. 60. K.S.A. 59-2203 is hereby
amended to read as follows: 59-
2203. Proceedings for the probate of a will or for administration
shall be
had in the county of the residence of the decedent at the time of
such
decedent's death if the decedent owned an interest in real property
in
such county, or, if the decedent did not own an interest in real
property
in the decedent's county of residence at the time of such
decedent's
death, in such county of the residence of the decedent at the time
of such
decedent's death or in any county where the decedent owned an
interest
in real property; if the decedent was not a resident of this state,
proceed-
ings may be had in any county where such decedent left any estate
to be
administered as provided in K.S.A. 59-805 and amendments thereto.
Pro-
ceedings for the appointment of a guardian may be had in
the county of
the proposed ward's residence or where the proposed ward
may be found.
Proceedings for the appointment of a conservator shall be
had in the
county of the proposed conservatee's residence; if the
proposed conser-
vatee resides without this state, proceedings may be had in
any county in
which any of the proposed conservatee's property is
situated. Proceedings
for the administration of a partnership estate by the surviving
partner
shall be had in the county of the residence of the deceased partner
at the
time. If the deceased partner is a nonresident of the state the
proceedings
may be had in any county in which any of the partnership property
is
situated. Such proceedings first legally commenced shall extend to
all of
the property of the decedent or proposed conservatee in this
state.
If the proceedings are instituted in more than
one county, they shall
be stayed except in the county where first commenced until final
deter-
mination of venue. If the proper venue is determined to be in
another
county, the district court, after making and retaining a true copy
of the
entire file, shall transmit the original to the proper county.
Sec. 61. K.S.A. 2001 Supp. 59-2401
is hereby amended to read as
follows: 59-2401. (a) An appeal may be taken within 30 days from
the
date of entry of any of the following orders, judgments, decrees
and de-
cisions:
(1) An order admitting or refusing to
admit a will to probate.
(2) An order appointing, refusing to
appoint, removing or refusing to
remove a fiduciary other than a special administrator.
(3) An order setting apart or refusing to
set apart a homestead or
other property, or making or refusing to make an allowance of
exempt
property to the spouse and minor children.
(4) An order determining, refusing to
determine, transferring or re-
fusing to transfer venue.
(5) An order allowing or disallowing a
demand, in whole or in part,
when the amount in controversy exceeds $500.
(6) An order authorizing, refusing to
authorize, confirming or refus-
ing to confirm the sale, lease or mortgage of real estate.
(7) Judgments for waste.
(8) An order directing or refusing to
direct a conveyance or lease of
real estate under contract.
(9) An order directing or refusing to
direct the payment of a legacy
or distributive share.
(10) An order allowing or refusing to
allow an account of a fiduciary
or any part thereof.
(11) A judgment or decree of partial or
final distribution.
(12) An order compelling or refusing to
compel a legatee or distri-
butee to refund.
(13) An order directing or refusing to
direct an allowance for the
expenses of administration.
(14) An order vacating or refusing to
vacate a previous appealable
order, judgment, decree or decision.
(15) A decree determining or refusing to
determine the heirs, devi-
sees and legatees.
(16) An order adjudging a person in
contempt.
(17) An order adjudging or refusing to
adjudge a person an incapac-
itated impaired person.
(18) The granting or refusing to grant an
order for treatment.
(19) An order granting or denying
restoration to capacity.
(20) An order granting or denying
discharge.
(21) An order finding or refusing to find
that there is a valid consent
to a will.
(22) An order finding or refusing to find
that there is a valid settle-
ment agreement.
(23) An order decreeing or refusing to
decree an adoption.
(24) A final order, decision or judgment
in any probate proceeding.
(b) Notwithstanding the provisions of
K.S.A. 60-2103 and amend-
ments thereto relating to bonds, the appellant, other than the
state or
municipality or a fiduciary appealing on behalf of the estate,
shall file in
the court from which the appeal is taken a bond in such sum and
with
such sureties as may be fixed and approved by the court,
conditioned that
the appellant will without unnecessary delay prosecute the appeal
and
pay all sums, damages and costs that may be adjudged against the
appel-
lant.
(c) Except as otherwise provided in this
section, appeals taken pur-
suant to this section shall be taken in the manner provided by
chapter 60
of the Kansas Statutes Annotated for other civil cases.
Sec. 62. K.S.A. 2001 Supp. 59-2946
is hereby amended to read as
follows: 59-2946. When used in the care and treatment act for
mentally
ill persons:
(a) ``Discharge'' means the final and
complete release from treat-
ment, by either the head of a treatment facility acting pursuant to
K.S.A.
2001 Supp. 59-2950 and amendments thereto or by an order of a
court
issued pursuant to K.S.A. 2001 Supp. 59-2973 and amendments
thereto.
(b) ``Head of a treatment facility''
means the administrative director
of a treatment facility or such person's designee.
(c) ``Law enforcement officer'' shall
have the meaning ascribed to it
in K.S.A. 22-2202, and amendments thereto.
(d) (1) ``Mental health center''
means any community mental health
center organized pursuant to the provisions of K.S.A. 19-4001
through
19-4015 and amendments thereto, or mental health clinic organized
pur-
suant to the provisions of K.S.A. 65-211 through 65-215 and
amendments
thereto, or a mental health clinic organized as a not-for-profit or
a for-
profit corporation pursuant to K.S.A. 17-1701 through 17-1775
and
amendments thereto or K.S.A. 17-6001 through 17-6010 and amend-
ments thereto, and licensed in accordance with the provisions of
K.S.A.
75-3307b and amendments thereto.
(2) ``Participating mental health
center'' means a mental health center
which has entered into a contract with the secretary of social and
reha-
bilitation services pursuant to the provisions of K.S.A. 39-1601
through
39-1612 and amendments thereto.
(e) ``Mentally ill person'' means any
person who is suffering from a
mental disorder which is manifested by a clinically significant
behavioral
or psychological syndrome or pattern and associated with either a
painful
symptom or an impairment in one or more important areas of
functioning,
and involving substantial behavioral, psychological or biological
dysfunc-
tion, to the extent that the person is in need of treatment.
(f) (1) ``Mentally ill person
subject to involuntary commitment for
care and treatment'' means a mentally ill person, as defined in
subsection
(e), who also lacks capacity to make an informed decision
concerning
treatment, is likely to cause harm to self or others, and whose
diagnosis
is not solely one of the following mental disorders: Alcohol or
chemical
substance abuse; antisocial personality disorder; mental
retardation; or-
ganic personality syndrome; or an organic mental disorder.
(2) ``Lacks capacity to make an informed
decision concerning treat-
ment'' means that the person, by reason of the person's mental
disorder,
is unable, despite conscientious efforts at explanation, to
understand ba-
sically the nature and effects of hospitalization or treatment or
is unable
to engage in a rational decision-making process regarding
hospitalization
or treatment, as evidenced by an inability to weigh the possible
risks and
benefits.
(3) ``Likely to cause harm to self or
others'' means that the person,
by reason of the person's mental disorder: (a) Is likely, in the
reasonably
foreseeable future, to cause substantial physical injury or
physical abuse
to self or others or substantial damage to another's property, as
evidenced
by behavior threatening, attempting or causing such injury, abuse
or dam-
age; except that if the harm threatened, attempted or caused is
only harm
to the property of another, the harm must be of such a value and
extent
that the state's interest in protecting the property from such harm
out-
weighs the person's interest in personal liberty; or (b) is
substantially
unable, except for reason of indigency, to provide for any of the
person's
basic needs, such as food, clothing, shelter, health or safety,
causing a
substantial deterioration of the person's ability to function on
the person's
own.
No person who is being treated by prayer in
the practice of the religion
of any church which teaches reliance on spiritual means alone
through
prayer for healing shall be determined to be a mentally ill person
subject
to involuntary commitment for care and treatment under this act
unless
substantial evidence is produced upon which the district court
finds that
the proposed patient is likely in the reasonably foreseeable future
to cause
substantial physical injury or physical abuse to self or others or
substantial
damage to another's property, as evidenced by behavior threatening,
at-
tempting or causing such injury, abuse or damage; except that if
the harm
threatened, attempted or caused is only harm to the property of
another,
the harm must be of such a value and extent that the state's
interest in
protecting the property from such harm outweighs the person's
interest
in personal liberty.
(g) ``Patient'' means a person who is a
voluntary patient, a proposed
patient or an involuntary patient.
(1) ``Voluntary patient'' means a person
who is receiving treatment at
a treatment facility pursuant to K.S.A. 2001 Supp. 59-2949 and
amend-
ments thereto.
(2) ``Proposed patient'' means a person
for whom a petition pursuant
to K.S.A. 2001 Supp. 59-2952 or K.S.A. 2001 Supp.
59-2957 and amend-
ments thereto has been filed.
(3) ``Involuntary patient'' means a
person who is receiving treatment
under order of a court or a person admitted and detained by a
treatment
facility pursuant to an application filed pursuant to subsection
(b) or (c)
of K.S.A. 2001 Supp. 59-2954 and amendments thereto.
(h) ``Physician'' means a person licensed
to practice medicine and
surgery as provided for in the Kansas healing arts act or a person
who is
employed by a state psychiatric hospital or by an agency of the
United
States and who is authorized by law to practice medicine and
surgery
within that hospital or agency.
(i) ``Psychologist'' means a licensed
psychologist, as defined by K.S.A.
74-5302 and amendments thereto.
(j) ``Qualified mental health
professional'' means a physician or psy-
chologist who is employed by a participating mental health center
or who
is providing services as a physician or psychologist under a
contract with
a participating mental health center, a licensed masters level
psychologist,
a licensed clinical psychotherapist, a licensed marriage and family
thera-
pist, a licensed clinical marriage and family therapist, a licensed
profes-
sional counselor, a licensed clinical professional counselor, a
licensed spe-
cialist social worker or a licensed master social worker or a
registered
nurse who has a specialty in psychiatric nursing, who is employed
by a
participating mental health center and who is acting under the
direction
of a physician or psychologist who is employed by, or under
contract with,
a participating mental health center.
(1) ``Direction'' means monitoring and
oversight including regular,
periodic evaluation of services.
(2) ``Licensed master social worker''
means a person licensed as a
master social worker by the behavioral sciences regulatory board
under
K.S.A. 65-6301 through 65-6318 and amendments thereto.
(3) ``Licensed specialist social worker''
means a person licensed in a
social work practice specialty by the behavioral sciences
regulatory board
under K.S.A. 65-6301 through 65-6318 and amendments thereto.
(4) ``Licensed masters level
psychologist'' means a person licensed as
a licensed masters level psychologist by the behavioral sciences
regulatory
board under K.S.A. 74-5361 through 74-5373 and amendments
thereto.
(5) ``Registered nurse'' means a person
licensed as a registered pro-
fessional nurse by the board of nursing under K.S.A. 65-1113
through 65-
1164 and amendments thereto.
(k) ``Secretary'' means the secretary of
social and rehabilitation serv-
ices.
(l) ``State psychiatric hospital'' means
Larned state hospital, Osawa-
tomie state hospital, Rainbow mental health facility or Topeka
state hos-
pital.
(m) ``Treatment'' means any service
intended to promote the mental
health of the patient and rendered by a qualified professional,
licensed
or certified by the state to provide such service as an independent
prac-
titioner or under the supervision of such practitioner.
(n) ``Treatment facility'' means any
mental health center or clinic,
psychiatric unit of a medical care facility, state psychiatric
hospital, psy-
chologist, physician or other institution or person authorized or
licensed
by law to provide either inpatient or outpatient treatment to any
patient.
(o) The terms defined in K.S.A.
59-3002 section 2 and amendments
thereto shall have the meanings provided by that section.
Sec. 63. K.S.A. 2001 Supp. 59-2948
is hereby amended to read as
follows: 59-2948. (a) The fact that a person may have voluntarily
accepted
any form of psychiatric treatment, or become subject to a court
order
entered under authority of this act, shall not be construed to mean
that
such person shall have lost any civil right they otherwise would
have as a
resident or citizen, any property right or their legal capacity,
except as
may be specified within any court order or as otherwise limited by
the
provisions of this act or the reasonable rules and regulations
which the
head of a treatment facility may for good cause find necessary to
make
for the orderly operations of that facility. No person held in
custody under
the provisions of this act shall be denied the right to apply for a
writ of
habeas corpus.
(b) There shall be no implication or
presumption that a patient within
the terms of this act is for that reason alone a
disabled person as defined
in K.S.A. 59-3002 in need of a guardian or a
conservator as provided for
in sections 1 through 46, and amendments thereto.
Sec. 64. K.S.A. 2001 Supp. 59-2949
is hereby amended to read as
follows: 59-2949. (a) A mentally ill person may be admitted to a
treatment
facility as a voluntary patient when there are available
accommodations
and the head of the treatment facility determines such person is in
need
of treatment therein, and that the person has the capacity to
consent to
treatment, except that no such person shall be admitted to a state
psy-
chiatric hospital without a written statement from a qualified
mental
health professional authorizing such admission.
(b) Admission shall be made upon written
application:
(1) If such person is 18 years of age or
older the person may make
such application for themself; or
(2) (A) If such person is less than
18 years of age, a parent may make
such application for their child; or
(B) if such person is less than 18 years
of age, but 14 years of age or
older the person may make such written application on their own
behalf
without the consent or written application of their parent, legal
guardian
or any other person. Whenever a person who is 14 years of age or
older
makes written application on their own behalf and is admitted as a
vol-
untary patient, the head of the treatment facility shall promptly
notify the
child's parent, legal guardian or other person known to the head of
the
treatment facility to be interested in the care and welfare of the
minor of
the admittance of that child; or
(3) if such person has a legal guardian,
the legal guardian may make
such application only after obtaining provided
that if the legal guardian
is required to obtain authority to do so pursuant to
K.S.A. 59-3018a sec-
tion 28, and amendments thereto. If the legal guardian is
seeking admis-
sion of their ward upon an order giving the guardian continuing
authority
to admit the ward to an appropriate psychiatric
a treatment facility, as
defined in section 28, and amendments thereto, the head of
the treatment
facility may require a statement from the patient's attending
physician or
from the local health officer of the area in which the patient
resides
confirming that the patient is in need of psychiatric treatment in
a treat-
ment facility before accepting the ward for admission, and shall
divert
any such person to a less restrictive treatment alternative, as may
be
appropriate.
(c) No person shall be admitted as a
voluntary patient under the pro-
visions of this act to any treatment facility unless the head of
the treatment
facility has informed such person or such person's parent, legal
guardian,
or other person known to the head of the treatment facility to be
inter-
ested in the care and welfare of a minor, in writing, of the
following:
(1) The rules and procedures of the
treatment facility relating to the
discharge of voluntary patients;
(2) the legal rights of a voluntary
patient receiving treatment from a
treatment facility as provided for in K.S.A. 2001 Supp. 59-2978
and
amendments thereto; and
(3) in general terms, the types of
treatment which are available or
would not be available to a voluntary patient from that treatment
facility.
(d) Nothing in this act shall be
construed as to prohibit a proposed
or involuntary patient with capacity to do so from making an
application
for admission as a voluntary patient to a treatment facility. Any
proposed
or involuntary patient desiring to do so shall be afforded an
opportunity
to consult with their attorney prior to making any such
application. If the
head of the treatment facility accepts the application and admits
the pa-
tient as a voluntary patient, then the head of the treatment
facility shall
notify, in writing, the patient's attorney, the patient's legal
guardian, if the
patient has a legal guardian, and the district court which has
jurisdiction
over the patient of the patient's voluntary status. When a notice
of vol-
untary admission is received, the court shall file the same which
shall
terminate the proceedings.
Sec. 65. K.S.A. 2001 Supp. 59-2951
is hereby amended to read as
follows: 59-2951. (a) A voluntary patient shall be entitled to be
discharged
from a treatment facility, by the head of the treatment facility,
by no later
than the third day, excluding Saturdays, Sundays and holidays,
after re-
ceipt of the patient's written request for discharge. If the
voluntary patient
is a patient in a state psychiatric hospital, that hospital shall
immediately
give either oral or facsimile notice to the participating mental
health cen-
ter serving the area where the patient intends to reside and shall
consider
any recommendations from that mental health center which may be
re-
ceived prior to the time set for discharge as specified in the
notice.
(b) (1) If the voluntary patient is
an adult admitted upon the appli-
cation of a legal guardian or pursuant to an order of the court
issued
pursuant to K.S.A. 59-3018a section 28, and
amendments thereto, any
request for discharge must be made, in writing, by the legal
guardian.
(2) If the voluntary patient is a minor,
the written request for dis-
charge shall be made by the child's parent or legal guardian except
if the
minor was admitted upon their own written application to become a
vol-
untary patient made pursuant to K.S.A. 2001 Supp. 59-2949 and
amend-
ments thereto, then the minor may make the request. In the case of
a
minor 14 or more years of age who had made written application to
be-
come a voluntary patient on their own behalf and who has requested
to
be discharged, the head of the treatment facility shall promptly
inform
the child's parent, legal guardian, or other person known to the
head of
the treatment facility to be interested in the care and welfare of
the minor
of the minor's request for discharge.
Sec. 66. K.S.A. 2001 Supp. 59-2960
is hereby amended to read as
follows: 59-2960. (a) Upon the filing of the petition provided for
in K.S.A.
2001 Supp. 59-2957 and amendments thereto, the district court
shall
issue the following:
(1) An order fixing the time and place of
the trial upon the petition.
Such hearing, in the court's discretion, may be conducted in a
courtroom,
a treatment facility or at some other suitable place. The time
fixed in the
order shall in no event be earlier than 7
seven days or later than 14 days
after the date of the filing of the petition. If a demand for a
trial by jury
is later filed by the proposed patient, the court may continue the
trial and
fix a new time and place of the trial at a time that may exceed
beyond
the 14 days but shall be fixed within a reasonable time not
exceeding 30
days from the date of the filing of the demand.
(2) An order that the proposed patient
appear at the time and place
of the hearing and providing that the proposed patient's presence
will be
required at the hearing unless the attorney for the proposed
patient shall
make a request that the proposed patient's presence be waived and
the
court finds that the proposed patient's presence at the hearing
would be
injurious to the proposed patient's welfare. The order shall
further pro-
vide that notwithstanding the foregoing provision, if the proposed
patient
requests in writing to the court or to such person's attorney that
the
proposed patient wishes to be present at the hearing, the proposed
pa-
tient's presence cannot be waived.
(3) An order appointing an attorney to
represent the proposed patient
at all stages of the proceedings and until all orders resulting
from such
proceedings are terminated. The court shall give preference, in the
ap-
pointment of this attorney, to any attorney who has represented the
pro-
posed patient in other matters if the court has knowledge of that
prior
representation. The proposed patient shall have the right to engage
an
attorney of the proposed patient's own choice and, in such event,
the
attorney appointed by the court shall be relieved of all duties by
the court.
(4) An order that the proposed patient
shall appear at a time and
place that is in the best interests of the patient where the
proposed patient
will have the opportunity to consult with the proposed patient's
court-
appointed attorney, which time shall be at least 5
five days prior to the
date set for the trial under K.S.A. 2001 Supp. 59-2965 and
amendments
thereto.
(5) An order for a mental evaluation as
provided for in K.S.A. 2001
Supp. 59-2961 and amendments thereto.
(6) A notice as provided for in K.S.A.
2001 Supp. 59-2963 and amend-
ments thereto.
(7) If the petition also contains
allegations as provided for in K.S.A.
59-3009 section 9, 10, 11, 12 or 13, and
amendments thereto, those orders
necessary to make a determination of the need for a legal guardian
or
conservator, or both, to act on behalf of the proposed patient. For
these
purposes, the trials required by K.S.A. 2001 Supp. 59-2965 and
K.S.A.
59-3013 section 18, and amendments thereto,
may be consolidated.
(b) Nothing in this section shall prevent
the court from granting an
order of continuance, for good cause shown, to any party for no
longer
than 7 seven days, except that such
limitation does not apply to a request
for an order of continuance made by the proposed patient or to a
request
made by any party if the proposed patient absents him or herself
such
that further proceedings can not be held until the proposed patient
has
been located. The court also, upon the request of any party, may
advance
the date of the hearing if necessary and in the best interests of
all con-
cerned.
Sec. 67. K.S.A. 2001 Supp. 59-29b46
is hereby amended to read as
follows: 59-29b46. When used in the care and treatment act for
persons
with an alcohol or substance abuse problem:
(a) ``Discharge'' means the final and
complete release from treat-
ment, by either the head of a treatment facility acting pursuant to
K.S.A.
2001 Supp. 59-29b50 and amendments thereto or by an order of a
court
issued pursuant to K.S.A. 2001 Supp. 59-29b73 and amendments
thereto.
(b) ``Head of a treatment facility''
means the administrative director
of a treatment facility or such person's designee.
(c) ``Law enforcement officer'' shall
have the meaning ascribed to it
in K.S.A. 22-2202 and amendments thereto.
(d) ``Other facility for care or
treatment'' means any mental health
clinic, medical care facility, nursing home, the detox units at
either Osa-
watomie state hospital or Larned state hospital, any physician or
any other
institution or individual authorized or licensed by law to give
care or
treatment to any person.
(e) ``Patient'' means a person who is a
voluntary patient, a proposed
patient or an involuntary patient.
(1) ``Voluntary patient'' means a person
who is receiving treatment at
a treatment facility pursuant to K.S.A. 2001 Supp. 59-29b49 and
amend-
ments thereto.
(2) ``Proposed patient'' means a person
for whom a petition pursuant
to K.S.A. 2001 Supp. 59-29b52 or 59-29b57 and amendments thereto
has
been filed.
(3) ``Involuntary patient'' means a
person who is receiving treatment
under order of a court or a person admitted and detained by a
treatment
facility pursuant to an application filed pursuant to subsection
(b) or (c)
of K.S.A. 2001 Supp. 59-29b54 and amendments thereto.
(f) ``Person with an alcohol or substance
abuse problem'' means a
person who: (1) Lacks self-control as to the use of alcoholic
beverages or
any substance as defined in subsection (k); or
(2) uses alcoholic beverages or any
substance as defined in subsection
(k) to the extent that the person's health may be substantially
impaired
or endangered without treatment.
(g) (1) ``Person with an alcohol or
substance abuse problem subject
to involuntary commitment for care and treatment'' means a person
with
an alcohol or substance abuse problem, as defined in subsection
(f), who
also is incapacitated by alcohol or any substance and is likely to
cause
harm to self or others.
(2) ``Incapacitated by alcohol or any
substance'' means that the per-
son, as the result of the use of alcohol or any substance as
defined in
subsection (k), has impaired judgment resulting in the person: (A)
Being
incapable of realizing and making a rational decision with respect
to the
need for treatment; or
(B) lacking sufficient understanding or
capability to make or com-
municate responsible decisions concerning either the person's
well-being
or estate.
(3) ``Likely to cause harm to self or
others'' means that the person,
by reason of the person's use of alcohol or any substance: (A) Is
likely, in
the reasonably foreseeable future, to cause substantial physical
injury or
physical abuse to self or others or substantial damage to another's
prop-
erty, as evidenced by behavior threatening, attempting or causing
such
injury, abuse or damage; except that if the harm threatened,
attempted
or caused is only harm to the property of another, the harm must be
of
such a value and extent that the state's interest in protecting the
property
from such harm outweighs the person's interest in personal liberty;
or
(B) is substantially unable, except for
reason of indigency, to provide
for any of the person's basic needs, such as food, clothing,
shelter, health
or safety, causing a substantial deterioration of the person's
ability to
function on the person's own.
(h) ``Physician'' means a person licensed
to practice medicine and
surgery as provided for in the Kansas healing arts act or a person
who is
employed by a state psychiatric hospital or by an agency of the
United
States and who is authorized by law to practice medicine and
surgery
within that hospital or agency.
(i) ``Psychologist'' means a licensed
psychologist, as defined by K.S.A.
74-5302 and amendments thereto.
(j) ``State certified alcohol and drug
abuse counselor'' means a person
approved by the secretary of social and rehabilitation services to
perform
assessments using the American Society of Addiction Medicine
criteria
and employed at a state funded and designated assessment
center.
(k) ``Substance'' means: (1) The same as
the term ``controlled sub-
stance'' as defined in K.S.A. 65-4101 and amendments thereto;
or
(2) fluorocarbons, toluene or volatile
hydrocarbon solvents.
(l) ``Treatment'' means the broad range
of emergency, outpatient,
intermediate and inpatient services and care, including diagnostic
evalu-
ation, medical, psychiatric, psychological and social service care,
voca-
tional rehabilitation and career counseling, which may be extended
to
persons with an alcohol or substance abuse problem.
(m) (1) ``Treatment facility''
means a public or private treatment fa-
cility, or any facility of the United States government available
to treat a
person for an alcohol or other substance abuse problem, but such
term
shall not include a licensed medical care facility, a licensed
adult care
home, a facility licensed under K.S.A. 75-3307b and amendments
thereto,
a community-based alcohol and drug safety action program certified
un-
der K.S.A. 8-1008 and amendments thereto, and performing only
those
functions for which the program is certified to perform under
K.S.A. 8-
1008 and amendments thereto, or a psychologist or physician, who
may
treat in the usual course of the psychologist's or physician's
professional
practice individuals incapacitated by alcohol or other substances,
but who
are not exclusively engaged in the usual course of the individual's
profes-
sional practice in treating such individuals, or any state
institution, even
if detoxification services may have been obtained at such
institution.
(2) ``Private treatment facility'' means
a private agency providing fa-
cilities for the care and treatment or lodging of persons with
either an
alcohol or other substance abuse problem and meeting the
standards
prescribed in either K.S.A. 65-4013 or K.S.A.
65-4603 and amendments
thereto, and licensed under either K.S.A. 65-4014 or
K.S.A. 65-4607 and
amendments thereto.
(3) ``Public treatment facility'' means a
treatment facility owned and
operated by any political subdivision of the state of Kansas and
licensed
under either K.S.A. 65-4014 or K.S.A. 65-4603 and
amendments thereto,
as an appropriate place for the care and treatment or lodging of
persons
with an alcohol or other substance abuse problem.
(n) The terms defined in K.S.A.
59-3002 section 21 and amendments
thereto shall have the meanings provided by that section.
Sec. 68. K.S.A. 2001 Supp. 59-29b48
is hereby amended to read as
follows: 59-29b48. (a) The fact that a person may have voluntarily
ac-
cepted any form of treatment for an alcohol or substance abuse
problem,
or become subject to a court order entered under authority of this
act,
shall not be construed to mean that such person shall have lost any
civil
right they otherwise would have as a resident or citizen, any
property
right or their legal capacity, except as may be specified within
any court
order or as otherwise limited by the provisions of this act or the
reasonable
rules and regulations which the head of a treatment facility may
for good
cause find necessary to make for the orderly operations of that
facility.
No person held in custody under the provisions of this act shall be
denied
the right to apply for a writ of habeas corpus.
(b) There shall be no implication or
presumption that a patient within
the terms of this act is for that reason alone a
disabled person as defined
in K.S.A. 59-3002 in need of a guardian or a
conservator, or both, as
provided in sections 1 through 46, and amendments
thereto.
Sec. 69. K.S.A. 2001 Supp. 59-29b49
is hereby amended to read as
follows: 59-29b49. (a) A person with an alcohol or substance abuse
prob-
lem may be admitted to a treatment facility as a voluntary patient
when
there are available accommodations and the head of the treatment
facility
determines such person is in need of treatment therein, and that
the
person has the capacity to consent to treatment.
(b) Admission shall be made upon written
application:
(1) If such person is 18 years of age or
older the person may make
such application for themself; or
(2) (A) If such person is less than
18 years of age, a parent may make
such application for their child; or
(B) if such person is less than 18 years
of age, but 14 years of age or
older, the person may make such written application on their own
behalf
without the consent or written application of their parent, legal
guardian
or any other person. Whenever a person who is 14 years of age or
older
makes written application on their own behalf and is admitted as a
vol-
untary patient, the head of the treatment facility shall promptly
notify the
child's parent, legal guardian or other person known to the head of
the
treatment facility to be interested in the care and welfare of the
minor of
the admittance of that child; or
(3) if such person has a legal guardian,
the legal guardian may make
such application only after obtaining provided
that if the legal guardian
is required to obtain authority to do so pursuant to
K.S.A. 59-3018a sec-
tion 28, and amendments thereto, then only in accordance
with the pro-
visions thereof. If the legal guardian is seeking admission
of their ward
upon an order giving the guardian continuing authority to admit the
ward
to an appropriate a treatment facility
as defined in section 28, and amend-
ments thereto, the head of the treatment facility may
require a statement
from the patient's attending physician or from the local health
officer of
the area in which the patient resides confirming that the patient
is in need
of treatment for an alcohol or substance abuse problem in a
treatment
facility before accepting the ward for admission, and shall divert
any such
person to a less restrictive treatment alternative as may be
appropriate.
(c) No person shall be admitted as a
voluntary patient under the pro-
visions of this act to any treatment facility unless the head of
the treatment
facility has informed such person or such person's parent, legal
guardian,
or other person known to the head of the treatment facility to be
inter-
ested in the care and welfare of a minor, in writing, of the
following:
(1) The rules and procedures of the
treatment facility relating to the
discharge of voluntary patients;
(2) the legal rights of a voluntary
patient receiving treatment from a
treatment facility as provided for in K.S.A. 2001 Supp. 59-29b78
and
amendments thereto; and
(3) in general terms, the types of
treatment which are available or
would not be available to a voluntary patient from that treatment
facility.
(d) Nothing in this act shall be
construed as to prohibit a proposed
or involuntary patient with capacity to do so from making an
application
for admission as a voluntary patient to a treatment facility. Any
proposed
or involuntary patient desiring to do so shall be afforded an
opportunity
to consult with their attorney prior to making any such
application. If the
head of the treatment facility accepts the application and admits
the pa-
tient as a voluntary patient, then the head of the treatment
facility shall
notify, in writing, the patient's attorney, the patient's legal
guardian, if the
patient has a legal guardian, and the district court which has
jurisdiction
over the patient of the patient's voluntary status. When a notice
of vol-
untary admission is received, the court shall file the same which
shall
terminate the proceedings.
Sec. 70. K.S.A. 2001 Supp. 59-29b51
is hereby amended to read as
follows: 59-29b51. (a) A voluntary patient shall be entitled to be
dis-
charged from a treatment facility, by the head of the treatment
facility,
by no later than the third day, excluding Saturdays, Sundays and
holidays,
after receipt of the patient's written request for discharge.
(b) (1) If the voluntary patient is
an adult admitted upon the appli-
cation of a legal guardian or pursuant to an order of the court
issued
pursuant to K.S.A. 59-3018a section 28, and
amendments thereto, any
request for discharge must be made, in writing, by the legal
guardian.
(2) If the voluntary patient is a minor,
the written request for dis-
charge shall be made by the child's parent or legal guardian except
if the
minor was admitted upon their own written application to become a
vol-
untary patient made pursuant to K.S.A. 2001 Supp. 59-29b49 and
amend-
ments thereto, then the minor may make the request. In the case of
a
minor 14 or more years of age who had made written application to
be-
come a voluntary patient on their own behalf and who has requested
to
be discharged, the head of the treatment facility shall promptly
inform
the child's parent, legal guardian or other person known to the
head of
the treatment facility to be interested in the care and welfare of
the minor
of the minor's request for discharge.
Sec. 71. K.S.A. 2001 Supp. 59-29b60
is hereby amended to read as
follows: 59-29b60. (a) Upon the filing of the petition provided for
in
K.S.A. 2001 Supp. 59-29b57 and amendments thereto, the district
court
shall issue the following:
(1) An order fixing the time and place of
the trial upon the petition.
Such hearing, in the court's discretion, may be conducted in a
courtroom,
a treatment facility or at some other suitable place. The time
fixed in the
order shall in no event be earlier than seven days or later than 14
days
after the date of the filing of the petition. If a demand for a
trial by jury
is later filed by the proposed patient, the court may continue the
trial and
fix a new time and place of the trial at a time that may exceed
beyond
the 14 days but shall be fixed within a reasonable time not
exceeding 30
days from the date of the filing of the demand.
(2) An order that the proposed patient
appear at the time and place
of the hearing and providing that the proposed patient's presence
will be
required at the hearing unless the attorney for the proposed
patient shall
make a request that the proposed patient's presence be waived and
the
court finds that the proposed patient's presence at the hearing
would be
injurious to the proposed patient's welfare. The order shall
further pro-
vide that notwithstanding the foregoing provision, if the proposed
patient
requests in writing to the court or to such person's attorney that
the
proposed patient wishes to be present at the hearing, the proposed
pa-
tient's presence cannot be waived.
(3) An order appointing an attorney to
represent the proposed patient
at all stages of the proceedings and until all orders resulting
from such
proceedings are terminated. The court shall give preference, in the
ap-
pointment of this attorney, to any attorney who has represented the
pro-
posed patient in other matters if the court has knowledge of that
prior
representation. The proposed patient shall have the right to engage
an
attorney of the proposed patient's own choice and, in such event,
the
attorney appointed by the court shall be relieved of all duties by
the court.
(4) An order that the proposed patient
shall appear at a time and
place that is in the best interests of the patient where the
proposed patient
will have the opportunity to consult with the proposed patient's
court-
appointed attorney, which time shall be at least 5
five days prior to the
date set for the trial under K.S.A. 2001 Supp. 59-29b65 and
amendments
thereto.
(5) An order for an evaluation as
provided for in K.S.A. 2001 Supp.
59-29b61 and amendments thereto.
(6) A notice as provided for in K.S.A.
2001 Supp. 59-29b63 and
amendments thereto.
(7) If the petition also contains
allegations as provided for in K.S.A.
59-3009 section 9, 10, 11, 12 or 13, and
amendments thereto, those orders
necessary to make a determination of the need for a legal guardian
or
conservator, or both, to act on behalf of the proposed patient. For
these
purposes, the trials required by K.S.A. 2001 Supp. 59-29b65 and
K.S.A.
59-3013 section 18, and amendments thereto,
may be consolidated.
(8) If the petitioner shall not have
named a proposed treatment fa-
cility to which the proposed patient may be sent as provided for
subsec-
tion (b)(8) of K.S.A. 2001 Supp. 59-29b57 and amendments thereto,
but
instead stated that the secretary of social and rehabilitation
services has
been notified and requested to determine which treatment facility
the
proposed patient should be sent to, then the court shall issue an
order
requiring the secretary, or the secretary's designee, to make that
deter-
mination and to notify the court of the name and address of that
treatment
facility by such time as the court shall specify in the court's
order.
(b) Nothing in this section shall prevent
the court from granting an
order of continuance, for good cause shown, to any party for no
longer
than seven days, except that such limitation does not apply to a
request
for an order of continuance made by the proposed patient or to a
request
made by any party if the proposed patient is absent such that
further
proceedings can not be held until the proposed patient has been
located.
The court also, upon the request of any party, may advance the date
of
the hearing if necessary and in the best interests of all
concerned.
Sec. 72. K.S.A. 2001 Supp. 60-304
is hereby amended to read as
follows: 60-304. As used in this section, ``serving'' means making
service
by any of the methods described in K.S.A. 60-303, and
amendments
thereto, unless a specific method of making service is prescribed
in this
section. Except for service by publication under K.S.A. 60-307,
and
amendments thereto, service of process under this article shall be
made
as follows:
(a) Individual. Upon an individual
other than a minor or a disabled
person, by serving the individual or by serving an agent authorized
by
appointment or by law to receive service of process, but if the
agent is
one designated by statute to receive service, such further notice
as the
statute requires shall be given. Service by certified mail shall be
addressed
to an individual at the individual's dwelling house or usual place
of abode
and to an authorized agent at the agent's usual or designated
address. If
service by certified mail to the individual's dwelling house or
usual place
of abode is refused or unclaimed, the sheriff, party or party's
attorney
seeking service may complete service by certified mail, restricted
delivery,
by serving the individual at a business address after filing a
return on
service stating the certified mailing to the individual at such
individual's
dwelling house or usual place of abode has been refused or
unclaimed
and a business address is known for such individual.
(b) Minor. Upon a minor, by
serving the minor and also either the
minor's guardian or conservator if the minor has one within the
state or
the minor's father or mother or other person having the minor's
care or
control or with whom such minor resides, or if service cannot be
made
upon any of them, then as provided by order of the judge. Service
by
certified mail shall be addressed to an individual at the
individual's dwell-
ing house or usual place of abode and to a corporate guardian or
conser-
vator at such guardian or conservator's usual place of
business.
(c) Disabled person. Upon a
disabled person, as defined in K.S.A. 59-
3002 77-201, and amendments thereto, by
serving (1) such person's
guardian, conservator or a competent adult member of such
person's
family with whom the person resides, or if such person is living in
an
institution, then the director or chief executive officer of the
institution
or, if service cannot be made upon any of them, then as provided by
order
of the judge, and (2) unless the judge otherwise orders, the
disabled
person. Service by certified mail shall be addressed to a director
or chief
executive officer of an institution at the institution, to any
other individual
at the individual's dwelling house or usual place of abode, and to
a cor-
porate guardian or conservator at such guardian or conservator's
usual
place of business.
(d) Governmental bodies. (1) Upon
a county, by serving one of the
county commissioners or the county clerk or the county treasurer;
(2)
upon a township, by serving the clerk or the trustee; (3) upon a
city, by
serving the clerk or the mayor; (4) upon any other public
corporation,
body politic, district or authority by serving the clerk or
secretary or, if
not to be found, to any officer, director or manager thereof; and
(5) upon
the state or any governmental agency of the state, when subject to
suit,
by serving the attorney general or an assistant attorney general.
Service
by certified mail shall be addressed to the appropriate official at
the of-
ficial's governmental office. Income withholding orders for support
and
orders of garnishment of earnings of state officers and employees
shall
be served upon the state or governmental agency of the state in the
man-
ner provided by K.S.A. 60-723 and amendments thereto.
(e) Corporations, domestic or foreign
limited liability company, do-
mestic or foreign limited partnership, domestic or foreign
limited liability
partnership, and partnerships. Upon a domestic or foreign
corporation,
domestic or foreign limited liability company, domestic or foreign
limited
partnership, domestic or foreign limited liability partnership or
upon a
partnership or other unincorporated association, when by law it may
be
sued as such, (1) by serving an officer, manager, partner or a
resident,
managing or general agent, or (2) by leaving a copy of the summons
and
petition at any business office of the defendant with the person
having
charge thereof, or (3) by serving any agent authorized by
appointment or
required by law to receive service of process, and if the agent is
one
authorized by law to receive service and the law so requires, by
also
mailing a copy to the defendant. Service by certified mail on an
officer,
partner or agent shall be addressed to such person at the person's
usual
place of business.
(f) Corporation, limited liability
company, limited partnership or lim-
ited liability partnership resident agent. Whenever any
domestic corpo-
ration, domestic limited liability company, domestic limited
partnership,
or any foreign corporation, foreign limited liability company, or
foreign
limited partnership authorized to transact business or transacting
business
without authority in this state, fails to appoint or maintain in
this state a
resident agent upon whom service of legal process or service of any
such
notice or demand may be had, whenever the resident agent of such
cor-
poration, limited liability company or limited partnership cannot
with rea-
sonable diligence be found at the registered office in this state,
the sec-
retary of state shall be irrevocably authorized as the agent
and
representative of the corporation, limited liability company or
limited
partnership to accept service of any process or service of any
notice or
demand required or permitted by law to be served upon the
corporation,
limited liability company or limited partnership. Service on the
secretary
of state of any process, notice or demand against the corporation,
limited
liability company or limited partnership shall be made by
delivering to
the secretary of state by personal service or by certified mail,
the original
and two copies of the process and two copies of the petition,
notice or
demand, or the clerk of the court may send the original process and
two
copies of both the process and the petition, notice or demand
directly to
the secretary of state by certified mail. In the event that any
process,
notice or demand is served on the secretary of state, the secretary
shall
immediately cause a copy of such process, notice or demand to be
for-
warded by certified mail, addressed to the corporation, limited
liability
company or limited partnership at its principal office as it
appears in the
records of the secretary of state, or to the registered or
principal office
of the corporation, limited liability company or limited
partnership in the
state of its incorporation or formation. The secretary of state
shall keep
a record of all processes, notices and demands served upon the
secretary
under this subsection, and shall record in the record the time of
the
service and the action of the secretary with reference to it. A fee
of $40
shall be paid to the secretary of state by the party requesting the
service
of process, to cover the cost of such service of process, except
the sec-
retary of state may waive the fee for state agencies. That fee
shall not be
included within or paid from any deposit as security for any costs
or
docket fee required by K.S.A. 60-2001 or K.S.A. 2001 Supp. 61-4001,
and
amendments thereto.
(g) Insurance companies or
associations. Service of summons or other
process may also be made on any insurance company or association,
or-
ganized under the laws of the state of Kansas by service on the
commis-
sioner of insurance in the same manner as that provided for service
on
foreign insurance companies. All the requirements of law relating
to serv-
ice on foreign insurance companies so far as applicable shall also
apply
to domestic insurance companies.
(h) Service upon an employee. If
the plaintiff or the plaintiff's agent
or attorney files an affidavit that to the best of the affiant's
knowledge
and belief the defendant is a nonresident who is employed in this
state,
or that the place of residence of the defendant is unknown, the
affiant
may direct that the service of summons or other process be made by
the
sheriff or other duly authorized person by directing an officer,
partner,
managing or general agent, or the person having charge of the
office or
place of employment at which the defendant is employed, to make
the
defendant available for the purpose of permitting the sheriff or
other duly
authorized person to serve the summons or other process.
Sec. 73. K.S.A. 2001 Supp. 61-3004
is hereby amended to read as
follows: 61-3004. (a) Service shall be made promptly and, in any
event,
in time to make a timely return of service as required by K.S.A.
2001
Supp. 61-3005, and amendments thereto.
(b) If the defendant is a nonresident who
is employed in this state,
or if the place of residence of the defendant is unknown, the
plaintiff may
direct that the service of summons or other process shall be made
by
directing an officer, partner, managing or general agent, or the
person
having charge of the office or place of employment at which the
defendant
is employed, to make the defendant available for the purpose of
permit-
ting the summons or other process to be served on the defendant at
the
defendant's place of employment.
(c) As used in this section, ``serving''
means making service by any of
the methods described in K.S.A. 2001 Supp. 61-3003, and
amendments
thereto, unless a specific method of making service is prescribed
in this
section. Except for service by publication, service of process
shall be made
as follows:
(1) Service upon an individual other than
a minor or disabled person
shall be made by serving the individual or by serving an agent
authorized
by appointment or by law to receive service of process, but if the
agent
is one designated by statute to receive service, such further
notice as the
statute requires shall be given. Service by certified mail or
first-class mail
shall be addressed to an individual at the individual's dwelling
house or
usual place of abode and to an authorized agent at the agent's
usual or
designated address.
(2) Service upon a minor, disabled person
as defined by K.S.A. 59-
3002 77-201, and amendments thereto,
foreign or domestic corporations,
partnerships, insurance companies or associations shall be made in
ac-
cordance with the applicable provisions of K.S.A. 60-304, and
amend-
ments thereto.
(3) Service upon a governmental entity
shall be made in accordance
with the applicable provisions of K.S.A. 60-304, and amendments
thereto.
Sec. 74. K.S.A. 2001 Supp. 65-516
is hereby amended to read as
follows: 65-516. (a) No person shall knowingly maintain a child
care fa-
cility or maintain a family day care home if, in the child care
facility or
family day care home, there resides, works or regularly volunteers
any
person who:
(1) (A) Has a felony conviction for
a crime against persons, (B) has
a felony conviction under the uniform controlled substances act,
(C) has
a conviction of any act which is described in articles 34, 35 or 36
of chapter
21 of the Kansas Statutes Annotated and acts amendatory
thereof or sup-
plemental, and amendments thereto or a
conviction of an attempt under
K.S.A. 21-3301 and amendments thereto to commit any such act, or
(D)
has been convicted of any act which is described in K.S.A. 21-4301
or 21-
4301a and amendments thereto or similar statutes of other states or
the
federal government;
(2) has been adjudicated a juvenile
offender because of having com-
mitted an act which if done by an adult would constitute the
commission
of a felony and which is a crime against persons, is any act
described in
articles 34, 35 or 36 of chapter 21 of the Kansas Statutes
Annotated and
acts amendatory thereof or supplemental, and
amendments thereto, or is
any act described in K.S.A. 21-4301 or 21-4301a and amendments
thereto
or similar statutes of other states or the federal government;
(3) has committed an act of physical,
mental or emotional abuse or
neglect or sexual abuse as validated by the department of social
and re-
habilitation services pursuant to K.S.A. 38-1523 and amendments
thereto
and (A) the person has failed to successfully complete a corrective
action
plan which had been deemed appropriate and approved by the
depart-
ment of social and rehabilitation services, or (B) the record has
not been
expunged pursuant to rules and regulations adopted by the secretary
of
social and rehabilitation services;
(4) has had a child declared in a court
order in this or any other state
to be deprived or a child in need of care based on an allegation of
physical,
mental or emotional abuse or neglect or sexual abuse;
(5) has had parental rights terminated
pursuant to the Kansas juvenile
code or K.S.A. 38-1581 through 38-1584, and amendments thereto, or
a
similar statute of other states;
(6) has signed a diversion agreement
pursuant to K.S.A. 22-2906 et
seq., and amendments thereto, or an immediate intervention
agreement
pursuant to K.S.A. 38-1635 and amendments thereto involving a
charge
of child abuse or a sexual offense; or
(7) has an infectious or contagious
disease.
(b) No person shall maintain a child care
facility or a family day care
home if such person has been found to be a
disabled person in need of
a guardian or a conservator, or both, as provided in
sections 1 through
46, and amendments thereto.
(c) Any person who resides in a child
care facility or family day care
home and who has been found to be a disabled
person in need of a
guardian or a conservator, or both, shall be counted in the
total number
of children allowed in care.
(d) In accordance with the provisions of
this subsection (d), the sec-
retary shall have access to any court orders or adjudications of
any court
of record, any records of such orders or adjudications, criminal
history
record information in the possession of the Kansas bureau of
investigation
and any report of investigations as authorized by subsection (e) of
K.S.A.
38-1523 and amendments thereto in the possession of the department
of
social and rehabilitation services or court of this state
concerning persons
working, regularly volunteering or residing in a child care
facility or a
family day care home. The secretary shall have access to these
records
for the purpose of determining whether or not the home meets
the
requirements of K.S.A. 65-516 and 65-519 and amendments
thereto.
(e) No child care facility or family day
care home or the employees
thereof, shall be liable for civil damages to any person refused
employ-
ment or discharged from employment by reason of such facility's
or
home's compliance with the provisions of this section if such home
acts
in good faith to comply with this section.
(f) For the purpose of subsection (a)(3),
an act of abuse or neglect
shall not be considered to have been validated by the department of
social
and rehabilitation services unless the alleged perpetrator has: (1)
Had an
opportunity to be interviewed and present information during the
inves-
tigation of the alleged act of abuse or neglect; and (2) been given
notice
of the agency decision and an opportunity to appeal such decision
to the
secretary and to the courts pursuant to the act for judicial review
and civil
enforcement of agency actions.
Sec. 75. K.S.A. 2001 Supp. 65-5117
is hereby amended to read as
follows: 65-5117. (a) (1) No person shall knowingly operate a home
health
agency if, for the home health agency, there works any person who
has
been convicted of or has been adjudicated a juvenile offender
because of
having committed an act which if done by an adult would constitute
the
commission of capital murder, pursuant to K.S.A. 21-3439 and
amend-
ments thereto, first degree murder, pursuant to K.S.A. 21-3401
and
amendments thereto, second degree murder, pursuant to subsection
(a)
of K.S.A. 21-3402 and amendments thereto, voluntary manslaughter,
pur-
suant to K.S.A. 21-3403 and amendments thereto, assisting suicide,
pur-
suant to K.S.A. 21-3406 and amendments thereto, mistreatment of a
de-
pendent adult, pursuant to K.S.A. 21-3437 and amendments
thereto,
rape, pursuant to K.S.A. 21-3502 and amendments thereto, indecent
lib-
erties with a child, pursuant to K.S.A. 21-3503 and amendments
thereto,
aggravated indecent liberties with a child, pursuant to K.S.A.
21-3504 and
amendments thereto, aggravated criminal sodomy, pursuant to K.S.A.
21-
3506 and amendments thereto, indecent solicitation of a child,
pursuant
to K.S.A. 21-3510 and amendments thereto, aggravated indecent
solici-
tation of a child, pursuant to K.S.A. 21-3511 and amendments
thereto,
sexual exploitation of a child, pursuant to K.S.A. 21-3516 and
amend-
ments thereto, sexual battery, pursuant to K.S.A. 21-3517 and
amend-
ments thereto, or aggravated sexual battery, pursuant to K.S.A.
21-3518
and amendments thereto, an attempt to commit any of the crimes
listed
in this subsection (a)(1), pursuant to K.S.A. 21-3301, and
amendments
thereto, a conspiracy to commit any of the crimes listed in this
subsection
(a)(1), pursuant to K.S.A. 21-3302, and amendments thereto, or
criminal
solicitation of any of the crimes listed in this subsection (a)(1),
pursuant
to K.S.A. 21-3303, and amendments thereto, or similar statutes of
other
states or the federal government.
(2) A person operating a home health
agency may employ an appli-
cant who has been convicted of any of the following if five or more
years
have elapsed since the applicant satisfied the sentence imposed or
was
discharged from probation, a community correctional services
program,
parole, postrelease supervision, conditional release or a suspended
sen-
tence; or if five or more years have elapsed since the applicant
has been
finally discharged from the custody of the commissioner of juvenile
justice
or from probation or has been adjudicated a juvenile offender,
whichever
time is longer: A felony conviction for a crime which is described
in: (A)
article 34 of chapter 21 of the Kansas Statutes Annotated and
amend-
ments thereto, except those crimes listed in subsection (a)(1); (B)
articles
35 or 36 of chapter 21 of the Kansas Statutes Annotated and
amendments
thereto, except those crimes listed in subsection (a)(1) and K.S.A.
21-
3605 and amendments thereto; (C) an attempt to commit any of
the
crimes listed in this subsection (a)(2) pursuant to K.S.A. 21-3301,
and
amendments thereto; (D) a conspiracy to commit any of the crimes
listed
in subsection (a)(2) pursuant to K.S.A. 21-3302, and amendments
thereto;
(E) criminal solicitation of any of the crimes listed in subsection
(a)(2)
pursuant to K.S.A. 21-3303, and amendments thereto; or (F) similar
stat-
utes of other states or the federal government.
(b) No person shall operate a home health
agency if such person has
been found to be a disabled person in need of a
guardian or a conservator,
or both, as provided in sections 1 through 46, and amendments
thereto.
(c) The secretary of health and
environment shall have access to any
criminal history record information in the possession of the Kansas
bureau
of investigation regarding felony convictions, convictions under
K.S.A. 21-
3437 and 21-3517, and amendments thereto, adjudications of a
juvenile
offender which if committed by an adult would have been a felony
con-
viction, and adjudications of a juvenile offender for an offense
described
in K.S.A. 21-3437 and 21-3517, and amendments thereto,
concerning
persons working for a home health agency. The secretary shall have
access
to these records for the purpose of determining whether or not the
home
health agency meets the requirements of this section. The Kansas
bureau
of investigation may charge to the department of health and
environment
a reasonable fee for providing criminal history record information
under
this subsection.
(d) For the purpose of complying with
this section, the operator of a
home health agency shall request from the department of health
and
environment information regarding only felony convictions,
convictions
under K.S.A. 21-3437 and 21-3517, and amendments thereto,
adjudica-
tions of a juvenile offender which if committed by an adult would
have
been a felony conviction, and adjudications of a juvenile offender
for an
offense described in K.S.A. 21-3437 and 21-3517, and amendments
thereto, and which relates to a person who works for the home
health
agency or is being considered for employment by the home health
agency,
for the purpose of determining whether such person is subject to
the
provisions of this section. For the purpose of complying with this
section,
information relating to convictions and adjudications by the
federal gov-
ernment or to convictions and adjudications in states other than
Kansas
shall not be required until such time as the secretary of health
and en-
vironment determines the search for such information could
reasonably
be performed and the information obtained within a two-week
period.
For the purpose of complying with this section, the operator of a
home
health agency shall receive from any employment agency which
provides
employees to work for the home health agency written certification
that
such employees are not prohibited from working for the home
health
agency under this section. For the purpose of complying with this
section,
a person who operates a home health agency may hire an applicant
for
employment on a conditional basis pending the results from the
depart-
ment of health and environment of a request for information under
this
subsection. No home health agency, the operator or employees of a
home
health agency or an employment agency, or the operator or
employees
of an employment agency, which provides employees to work for
the
home health agency shall be liable for civil damages resulting from
any
decision to employ, to refuse to employ or to discharge from
employment
any person based on such home health agency's compliance with
the
provisions of this section if such home health agency or
employment
agency acts in good faith to comply with this section.
(e) The secretary of health and
environment shall charge each person
requesting information under this section a fee equal to cost, not
to ex-
ceed $10, for each name about which an information request has
been
submitted under this section.
(f) (1) The secretary of health and
environment shall provide each
operator requesting information under this section with the
criminal his-
tory record information concerning felony convictions and
convictions
under K.S.A. 21-3437 and 21-3517, and amendments thereto, in
writing
and within three working days of receipt of such information from
the
Kansas bureau of investigation. The criminal history record
information
shall be provided regardless of whether the information discloses
that the
subject of the request has been convicted of an offense enumerated
in
subsection (a).
(2) When an offense enumerated in
subsection (a) exists in the crim-
inal history record information, and when further confirmation
regarding
criminal history record information is required from the
appropriate court
of jurisdiction or Kansas department of corrections, the secretary
shall
notify each operator that requests information under this section
in writ-
ing and within three working days of receipt from the Kansas bureau
of
investigation that further confirmation is required. The secretary
shall
provide to the operator requesting information under this section
infor-
mation in writing and within three working days of receipt of such
infor-
mation from the appropriate court of jurisdiction or Kansas
department
of corrections regarding confirmation regarding the criminal
history rec-
ord information.
(3) Whenever the criminal history record
information reveals that the
subject of the request has no criminal history on record, the
secretary
shall provide notice to each operator requesting information under
this
section, in writing and within three working days after receipt of
such
information from the Kansas bureau of investigation.
(4) The secretary of health and
environment shall not provide each
operator requesting information under this section with the
juvenile crim-
inal history record information which relates to a person subject
to a
background check as is provided by K.S.A. 38-1618 and
amendments
thereto. The secretary shall notify the operator that requested the
infor-
mation, in writing and within three working days of receipt of such
in-
formation from the Kansas bureau of investigation, whether
juvenile
criminal history record information received pursuant to this
section re-
veals that the operator would or would not be prohibited by this
section
from employing the subject of the request for information.
(5) An operator who receives criminal
history record information un-
der this subsection (f) shall keep such information confidential,
except
that the operator may disclose such information to the person who
is the
subject of the request for information. A violation of this
paragraph (5)
shall be an unclassified misdemeanor punishable by a fine of
$100.
(g) No person who works for a home health
agency and who is cur-
rently licensed or registered by an agency of this state to provide
profes-
sional services in this state and who provides such services as
part of the
work which such person performs for the home health agency shall
be
subject to the provisions of this section.
(h) A person who volunteers to assist a
home health agency shall not
be subject to the provisions of this section because of such
volunteer
activity.
(i) No person who has been employed by
the same home health
agency for five consecutive years immediately prior to the
effective date
of this act shall be subject to the requirements of this section
while em-
ployed by such home health agency.
(j) The operator of a home health agency
shall not be required under
this section to conduct a background check on an applicant for
employ-
ment with the home health agency if the applicant has been the
subject
of a background check under this act within one year prior to the
appli-
cation for employment with the home health agency. The operator of
a
home health agency where the applicant was the subject of such
back-
ground check may release a copy of such background check to the
op-
erator of a home health agency where the applicant is currently
applying.
(k) For purposes of this section, the
Kansas bureau of investigation
shall only report felony convictions, convictions under K.S.A.
21-3437 and
21-3517, and amendments thereto, adjudications of a juvenile
offender
which if committed by an adult would have been a felony conviction,
and
adjudications of a juvenile offender for an offense described in
K.S.A. 21-
3437 and 21-3517, and amendments thereto, to the secretary of
health
and environment when a background check is requested.
(l) This section shall be part of and
supplemental to the provisions of
article 51 of chapter 65 of the Kansas Statutes Annotated and acts
amen-
datory thereof or supplemental thereto.
Sec. 76. K.S.A. 73-507 is hereby
amended to read as follows: 73-507.
Upon the filing of a petition for the appointment of a curator,
under the
provisions of this act, the court shall cause such notice to be
given as
provided by the act for obtaining a guardian or conservator, or
both
(K.S.A. 59-3001 et seq.
sections 1 through 46, and amendments thereto).
Sec. 77. K.S.A. 2001 Supp. 76-729
is hereby amended to read as
follows: 76-729. (a) Persons enrolling at the state educational
institutions
under the control and supervision of the state board of regents
who, if
such persons are adults, have been domiciliary residents of the
state of
Kansas or, if such persons are minors, whose parents have been
domicil-
iary residents of the state of Kansas for at least 12 months prior
to en-
rollment for any term or session at a state educational institution
are
residents for fee purposes. A person who has been a resident of the
state
of Kansas for fee purposes and who leaves the state of Kansas to
become
a resident of another state or country shall retain status as a
resident of
the state of Kansas for fee purposes if the person returns to
domiciliary
residency in the state of Kansas within 12 months of departure. All
other
persons are nonresidents of the state of Kansas for fee
purposes.
(b) The state board of regents may
authorize the following persons,
or any class or classes thereof, and their spouses and dependents
to pay
an amount equal to resident fees:
(1) Persons who are employees of a state
educational institution;
(2) persons who are in military
service;
(3) persons who are domiciliary residents
of the state, who were in
active military service prior to becoming domiciliary residents of
the state,
who were present in the state for a period of not less than two
years
during their tenure in active military service, whose domiciliary
residence
was established in the state within 30 days of discharge or
retirement
from active military service under honorable conditions, but whose
dom-
iciliary residence was not timely enough established to meet the
residence
duration requirement of subsection (a);
(4) persons having special domestic
relations circumstances;
(5) persons who have lost their resident
status within six months of
enrollment;
(6) persons who are not domiciliary
residents of the state, who have
graduated from a high school accredited by the state board of
education
within six months of enrollment, who were domiciliary residents of
the
state at the time of graduation from high school or within 12
months prior
to graduation from high school, and who are entitled to admission
at a
state educational institution pursuant to K.S.A. 72-116, and
amendments
thereto;
(7) persons who are domiciliary residents
of the state, whose domi-
ciliary residence was established in the state for the purpose of
accepting,
upon recruitment by an employer, or retaining, upon transfer
required
by an employer, a position of full-time employment at a place of
employ-
ment in Kansas, but the domiciliary residence of whom was not
timely
enough established to meet the residence duration requirement of
sub-
section (a), and who are not otherwise eligible for authorization
to pay an
amount equal to resident fees under this subsection; and
(8) persons who have graduated from a
high school accredited by the
state board of education within six months of enrollment and who,
at the
time of graduation from such a high school or while enrolled and in
at-
tendance at such a high school prior to graduation therefrom, were
de-
pendents of a person in military service within the state; if the
person,
whose dependent is eligible for authorization to pay an amount
equal to
resident fees under this provision, does not establish domiciliary
resi-
dence in the state upon retirement from military service,
eligibility of the
dependent for authorization to pay an amount equal to resident fees
shall
lapse.
(c) As used in this section:
(1) ``Parents'' means and includes
natural parents, adoptive parents,
stepparents, guardians and custodians.
(2) ``Guardian'' has the meaning ascribed
thereto by K.S.A. 59-3002
section 2, and amendments thereto.
(3) ``Custodian'' means a person, agency
or association granted legal
custody of a minor under the Kansas code for care of children.
(4) ``Domiciliary resident'' means a
person who has present and fixed
residence in Kansas where the person intends to remain for an
indefinite
period and to which the person intends to return following
absence.
(5) ``Full-time employment'' means
employment requiring at least
1,500 hours of work per year.
Sec. 78. K.S.A. 76-12b04 is hereby
amended to read as follows: 76-
12b04. If in the opinion of the superintendent an applicant for
admission
meets the definition of ``disabled person'' as set forth in
K.S.A. 59-3002
a person in need of a guardian or a conservator, or both, as
provided in
sections 1 through 46, and amendments thereto, the person
shall not be
admitted to an institution except for the purposes of conducting a
court
ordered evaluation pursuant to subsection (a)(6) of K.S.A.
59-3010 section
15, and amendments thereto until a court has determined the
legal status
of the person under the act for obtaining a guardian or
conservator, or
both. The provisions of this paragraph shall not be applicable if a
court
has already determined the legal status of the applicant under the
act.
Sec. 79. K.S.A. 77-201 is hereby
amended to read as follows: 77-201.
In the construction of the statutes of this state the following
rules shall
be observed, unless the construction would be inconsistent with the
man-
ifest intent of the legislature or repugnant to the context of the
statute:
First. The repeal of a statute does not
revive a statute previously re-
pealed, nor does the repeal affect any right which accrued, any
duty im-
posed, any penalty incurred or any proceeding commenced, under or
by
virtue of the statute repealed. The provisions of any statute, so
far as they
are the same as those of any prior statute, shall be construed as a
contin-
uation of the prior provisions and not as a new enactment.
Second. Words and phrases shall be
construed according to the context
and the approved usage of the language, but technical words and
phrases,
and other words and phrases that have acquired a peculiar and
appro-
priate meaning in law, shall be construed according to their
peculiar and
appropriate meanings.
Third. Words importing the singular
number only may be extended to
several persons or things, and words importing the plural number
only
may be applied to one person or thing. Words importing the
masculine
gender only may be extended to females.
Fourth. Words giving a joint authority
to three or more public officers
or other persons shall be construed as given that authority to a
majority
of them, unless it is otherwise expressed in the act giving the
authority.
Fifth. ``Highway'' and ``road'' include
public bridges and may be con-
strued to be equivalent to ``county way,'' ``county road,''
``common road,''
``state road'' and ``territorial road.''
Sixth. ``Incompetent person'' includes
disabled person as defined in
K.S.A. 59-3002 and amendments thereto persons
and incapacitated per-
sons as defined herein.
Seventh. ``Issue,'' as applied to the
descent of estates, includes all the
lawful lineal descendants of the ancestor.
Eighth. ``Land,'' ``real estate'' and
``real property'' include lands, tene-
ments and hereditaments, and all rights to them and interest in
them,
equitable as well as legal.
Ninth. ``Personal property'' includes
money, goods, chattels, evidences
of debt and things in action.
Tenth. ``Property'' includes personal
and real property.
Eleventh. ``Month'' means a calendar
month, unless otherwise ex-
pressed. ``Year'' alone, and also the abbreviation ``A.D.,'' is
equivalent to
the expression ``year of our Lord.''
Twelfth. ``Oath'' includes an
affirmation in all cases where an affirma-
tion may be substituted for an oath, and in similar cases ``swear''
includes
affirm.
Thirteenth. ``Person'' may be extended
to bodies politic and corporate.
Fourteenth. If the seal of a court or
public office or officer is required
by law to be affixed to any paper, ``seal'' includes an impression
of the
seal upon the paper alone, as well as upon wax or a wafer affixed
to the
paper. ``Seal'' also includes both a rubber stamp seal used with
permanent
ink and the word ``seal'' printed on court documents produced by
com-
puter systems, so that the seal may be legibly reproduced by
photographic
process.
Fifteenth. ``State,'' when applied to
the different parts of the United
States, includes the District of Columbia and the territories.
``United
States'' may include that district and those territories.
Sixteenth. ``Town'' may mean a civil
township, unless a different mean-
ing is plainly intended.
Seventeenth. ``Will'' includes
codicils.
Eighteenth. ``Written'' and ``in
writing'' may include printing, engrav-
ing, lithography and any other mode of representing words and
letters,
excepting those cases where the written signature or the mark of
any
person is required by law.
Nineteenth. ``Sheriff'' may be extended
to any person performing the
duties of the sheriff, either generally or in special cases.
Twentieth. ``Deed'' is applied to an
instrument conveying lands but
does not imply a sealed instrument. ``Bond'' and ``indenture'' do
not nec-
essarily imply a seal but in other respects mean the same kind of
instru-
ments as above. ``Undertaking'' means a promise or security in any
form
where required by law.
Twenty-first. ``Executor'' includes an
administrator where the subject-
matter applies to an administrator.
Twenty-second. Roman numerals and
Arabic figures are to be taken as
a part of the English language.
Twenty-third. ``Residence'' means the
place which is adopted by a per-
son as the person's place of habitation and to which, whenever the
person
is absent, the person has the intention of returning. When a person
eats
at one place and sleeps at another, the place where the person
sleeps
shall be considered the person's residence.
Twenty-fourth. ``Usual place of
residence'' and ``usual place of abode,''
when applied to the service of any process or notice, means the
place
usually occupied by a person. If a person has no family, or does
not have
family with the person, the person's office or place of business
or, if the
person has no place of business, the room or place where the
person
usually sleeps shall be construed to be the person's place of
residence or
abode.
Twenty-fifth. ``Householder'' means a
person who is 18 or more years
of age and who owns or occupies a house as a place of residence and
not
as a boarder or lodger.
Twenty-sixth. ``General election''
refers to the election required to be
held on the Tuesday following the first Monday in November of
each
even-numbered year.
Twenty-seventh. ``Under legal
disability'' includes persons who are
within the period of minority, or who are incapacitated,
incompetent or
imprisoned.
Twenty-eighth. When a person is
required to be disinterested or in-
different in acting on any question or matter affecting other
parties, re-
lationship within the degree of second cousin, inclusive, shall
disqualify
the person from acting, except by consent of parties.
Twenty-ninth. ``Head of a family''
shall include any person who has
charge of children, relatives or others living with the person.
Thirtieth. ``Mentally ill person''
means a mentally ill person as defined
in K.S.A. 1997 2001 Supp. 59-2946 and
amendments thereto.
Thirty-first. ``Incapacitated person''
means disabled person as defined
in K.S.A. 59-3002 and amendments thereto an
individual whose ability
to receive and evaluate relevant information, or to effectively
communi-
cate decisions, or both, even with the use of assistive
technologies or other
supports, is impaired to the degree that the person lacks the
capacity to
manage the person's estate, or to meet essential needs for the
person's
physical health, safety or welfare, as defined in section 2, and
amendments
thereto, whether or not a guardian or a conservator has been
appointed
for that person.
Thirty-second. ``Guardian'' means an
individual or a nonprofit corpo-
ration certified in accordance with K.S.A. 59-3037
section 21, and amend-
ments thereto which has been appointed by a court to act on behalf
of a
ward and possessed of some or all of the powers and duties set out
in
K.S.A. 59-3018 section 26, and amendments
thereto. ``Guardian'' does
not mean natural guardian unless specified.
Thirty-third. ``Natural guardian''
means both the biological or adoptive
mother and father and mother of a minor if
neither parent has been found
to be a disabled person an adult with an
impairment in need of a guardian
or has had parental rights terminated by a court of
competent jurisdiction.
If either parent of a minor dies, is found to be a disabled
person is de-
ceased, or has been found to be an adult with an impairment in
need of
a guardian, as provided for in sections 1 through 46, and
amendments
thereto or has had parental rights terminated by a court of
competent
jurisdiction, then the other parent shall be the
natural guardian, unless
also deceased, or found to be an adult with an impairment in
need of a
guardian, or has had parental rights terminated by a court of
competent
jurisdiction, in which case no person shall qualify as the
natural guardian.
Thirty-fourth. ``Conservator'' means an
individual or corporation ap-
pointed by the court to act on behalf of a conservatee and
possessed of
some or all of the powers and duties set out in K.S.A.
59-3019 section 29,
and amendments thereto.
Thirty-fifth. ``Minor'' means any
person defined by K.S.A. 38-101 and
amendments thereto as being within the period of minority.
Thirty-sixth. ``Proposed ward'' means a
person for whom an application
a petition for the appointment of a guardian pursuant to
K.S.A. 59-3006
section 9, 10, 11 or 12, and amendments thereto has been
filed.
Thirty-seventh. ``Proposed
conservatee'' means a person for whom a
petition for the appointment of a conservator pursuant to
K.S.A. 59-3006
section 9, 10, 11 or 12, and amendments thereto has been
filed.
Thirty-eighth. ``Ward'' means a person
who has a guardian.
Thirty-ninth. ``Conservatee'' means a
person who has a conservator.
Fortieth. ``Manufactured home''
means a structure which:
(1) Is transportable in one or more
sections which, in the traveling
mode, is 8 body feet or more in width or 40 body feet or more in
length,
or, when erected on site, is 320 or more square feet, and which is
built
on a permanent chassis and designed to be used as a dwelling, with
or
without permanent foundation, when connected to the required
utilities,
and includes the plumbing, heating, air conditioning and electrical
sys-
tems contained therein; and
(2) is subject to the federal
manufactured home construction and
safety standards established pursuant to 42 U.S.C. § 5403.
Forty-first. ``Mobile home'' means
a structure which:
(1) Is transportable in one or more
sections which, in the traveling
mode, is 8 body feet or more in width and 36 body feet or more in
length
and is built on a permanent chassis and designed to be used as a
dwelling,
with or without a permanent foundation, when connected to the
required
utilities, and includes the plumbing, heating, air conditioning and
elec-
trical systems contained therein; and
(2) is not subject to the federal
manufactured home construction and
safety standards established pursuant to 42 U.S.C. § 5403.
Forty-second. ``Disabled person''
includes incapacitated persons and
incompetent persons as defined herein.
New Sec. 80. If any provision of
this act for obtaining a guardian or
a conservator, or both, or the application thereof to any person or
cir-
cumstances is held invalid, the invalidity shall not affect other
provisions
or applications of this act which can be given effect with the
invalid pro-
vision or application, and to this end the provisions of this act
are sever-
able.
Sec. 81. K.S.A. 9-1215, 9-1216, 17-2263, 17-2264,
17-5828, 17-5829,
38-1505, 39-789, 44-513a, 58-629, 59-1701, 59-2203, 59-3001,
59-3003,
59-3004, 59-3006, 59-3007, 59-3008, 59-3011, 59-3012, 59-3015,
59-
3016, 59-3017, 59-3018, 59-3019, 59-3020, 59-3021, 59-3022,
59-3023,
59-3024, 59-3025, 59-3027, 59-3028, 59-3030, 59-3031, 59-3032,
59-
3034, 59-3035, 59-3037, 59-3038, 73-507, 76-12b04 and 77-201
and
K.S.A. 2001 Supp. 39-970, 58-24a15, 59-2401, 59-2946, 59-2948,
59-
2949, 59-2951, 59-2960, 59-29b46, 59-29b48, 59-29b49, 59-29b51,
59-
29b60, 59-3002, 59-3009, 59-3010, 59-3013, 59-3014, 59-3018a,
59-3026,
59-3029, 50-3036, 59-3039, 60-304, 60-304a, 61-3004, 65-516,
65-5117
and 76-729 are hereby repealed.
Sec. 82. This act shall take effect and be in
force from and after its
publication in the statute book.
Approved May 16, 2002.
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