Session of 1997
HOUSE BILL No. 2364
By Committee on Judiciary
9 AN ACT concerning guardians; relating to the powers thereof; amending
10 K.S.A. 59-3018 and K.S.A. 1996 Supp. 59-3018a and repealing the
11 existing sections.
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 59-3018 is hereby amended to read as follows: 59-
15 3018. (a) A guardian shall be subject to the control and direction of the
16 court at all times and in all things. It is the general duty of an individual
17 or corporation appointed to serve as a guardian to carry out diligently and
18 in good faith the specific duties and powers assigned by the court. In
19 carrying out these duties and powers, the guardian shall assure that per-
20 sonal, civil and human rights of the ward or minor whom the guardian
21 services are protected.
22 (b) The guardian of a minor shall be entitled to the custody and con-
23 trol of the ward and shall provide for the ward's education, support and
25 (c) A limited guardian shall have only such of the general duties and
26 powers herein set out as shall be specifically set forth in the dispositional
27 order pursuant to K.S.A. 59-3013 and amendments thereto and as shall
28 also be specifically set forth in ``Letters of Limited Guardianship'' pur-
29 suant to K.S.A. 59-3014 and amendments thereto.
30 (d) A guardian shall have all of the general duties and powers as set
31 out herein and as also set out in the dispositional order and in the letters
32 of guardianship.
33 (e) The general powers and duties of a guardian shall be to take
34 charge of the person of the ward and to provide for the ward's care,
35 treatment, habilitation, education, support and maintenance and to file
36 an annual accounting. The powers and duties shall include, but not be
37 limited to, the following:
38 (1) Assuring that the ward resides in the least restrictive setting rea-
39 sonably available;
40 (2) assuring that the ward receives medical care or nonmedical re-
41 medial care and other services that are needed;
42 (3) promoting and protecting the care, comfort, safety, health and
43 welfare of the ward;
1 (4) providing required consents on behalf of the ward;
2 (5) exercising all powers and discharging all duties necessary or
3 proper to implement the provisions of this section
4 (6) placing the ward in a treatment facility subject to the provisions
5 of subsection (f) of K.S.A. 59-3018a, and amendments thereto.
6 (f) A guardian of a ward is not obligated by virtue of the guardian's
7 appointment to use the guardian's own financial resources for the support
8 of the ward.
9 (g) A guardian shall not have the power:
10 (1) Except as provided in subsection (f) of K.S.A. 59-3018a, and
11 amendments thereto, to place a ward in a facility or institution, other than
12 a treatment facility, unless the placement of the ward has been approved
13 by the court.
14 (2) Except as provided in subsection (f) of K.S.A. 59-3018a, and
15 amendments thereto, to place a ward in a treatment facility unless ap-
16 proved by the court, except that a ward shall not be placed in a state
17 psychiatric hospital or state institution for the mentally retarded unless
18 authorized by the court pursuant to subsection (a) of K.S.A. 59-3018a,
19 and amendments thereto.
20 (3) To consent, on behalf of a ward, to psychosurgery, removal of a
21 bodily organ, or amputation of a limb unless the procedure is first ap-
22 proved by order of the court or is necessary, in an emergency situation,
23 to preserve the life or prevent serious impairment of the physical health
24 of the ward.
25 (4) To consent on behalf of the ward to the withholding of life-saving
26 medical procedures, except in accordance with provisions of K.S.A. 65-
27 28,101 through 65-28,109, and amendments thereto.
28 (5) To consent on behalf of a ward to the performance of any exper-
29 imental biomedical or behavioral procedure or to participation in any
30 biomedical or behavioral experiment without the review and approval by
31 an institutional review board under title 45, part 46 of the code of federal
32 regulations, where title 45, part 46 of the code of federal regulations
33 applies, or by a review committee where title 45, part 46, of the code of
34 federal regulations does not apply unless:
35 (A) It is intended to preserve the life or prevent serious impairment
36 of the physical health of the ward and it does not involve the application
37 of aversive stimulation; or
38 (B) it involves a behavioral procedure or experiment that does not
39 involve the application of aversive stimulation; or
40 (C) it is intended to assist the ward to develop or regain that person's
41 abilities and has been approved for that person by the court; and
42 (D) in the case of any procedure or experiment involving the appli-
43 cation of aversive stimulation, the procedure or experiment has been ap-
1 proved by the court.
2 No public or private entity or agency shall require or allow a ward to
3 perform any experimental biomedical or behavioral procedure or to par-
4 ticipate in any biomedical or behavioral experiment without the consent
5 of the guardian.
6 (6) To prohibit the marriage or divorce of a ward.
7 (7) To consent, on behalf of a ward, to the termination of the ward's
8 parental rights.
9 (8) To consent, on behalf of a ward, to sterilization of the ward, unless
10 the procedure is first approved by order of the court after a full due
11 process hearing where the ward is represented by a guardian ad litem.
12 (h) The guardian shall at least annually file a report concerning the
13 personal status of the ward as provided by K.S.A. 59-3029 and amend-
14 ments thereto.
15 Sec. 2. K.S.A. 1996 Supp. 59-3018a is hereby amended to read as
16 follows: 59-3018a. (a) Except as provided in subsection (f), a guardian may
17 file with the court a verified petition seeking authority to be able to admit
18 the guardian's ward to a treatment facility. Upon the filing of such peti-
19 tion, the court shall issue the following:
20 (1) An order fixing the time and place of the hearing on the petition.
21 The time designated in the order shall in no event be earlier than seven
22 days or later than 14 days after the date of the filing of the petition.
23 (2) An order that the ward appear at the time and place of the hearing
24 unless the court enters an order that the presence of the ward would be
25 injurious to the ward's welfare. The court shall enter in the record of the
26 proceedings the facts upon which the court has found that the presence
27 of the ward at the hearing would be injurious to the ward's welfare. Not-
28 withstanding the foregoing provisions of this subsection, if the ward or
29 the ward's attorney files with the court a written request that the ward
30 be present at the hearing, the ward's presence cannot be waived.
31 (3) An order appointing an attorney to represent the ward at all stages
32 of the proceedings. The court shall give preference, in the appointment
33 of the attorney, to any attorney who has represented the ward in other
34 matters if the court has knowledge of the prior relationship. The ward
35 shall have the right to choose and to engage an attorney and, in that event,
36 the attorney appointed by the court shall be relieved of all duties by the
38 (4) An order that the ward appear at the time and place that is in the
39 best interest of the ward to consult with the court appointed attorney,
40 which time shall be prior to the hearing on the petition.
41 (5) Notice in the manner provided by subsections (a)(1)(A) through
42 (C), (a)(2) and (b) of K.S.A. 59-3012 and amendments thereto.
43 (b) At or after the filing of a petition pursuant to this section, the
1 court may issue the following:
2 (1) An order for mental evaluation in the manner provided by sub-
3 section (a)(6) of K.S.A. 59-3012 and amendments thereto.
4 (2) An order of continuance, for good cause shown, upon request of
5 the petitioner, the ward or the ward's attorney.
6 (3) An order advancing the date of the hearing to as early a date as
7 is practicable upon request of the ward or the ward's attorney.
8 (c) The hearing on a petition filed pursuant to this section shall be
9 held at the time and place specified in the court's order unless an ad-
10 vancement or continuance has been granted. The hearing shall be to the
11 court only. The petitioner and the ward shall be afforded an opportunity
12 to appear at the hearing, to testify and to present and cross-examine
13 witnesses. All persons not necessary for the conduct of the hearing may
14 be excluded. The hearing shall be conducted in as informal a manner as
15 may be consistent with orderly procedure and in a physical setting not
16 likely to have a harmful effect on the ward. The court shall receive all
17 relevant and material evidence which may be offered, including the tes-
18 timony or written findings and recommendations of the treatment facility,
19 hospital, clinic, physician or psychologist who has examined or evaluated
20 the ward. Such evidence shall not be privileged for the purpose of this
22 If, upon the completion of the hearing, the court finds by clear and
23 convincing evidence that the criteria set out in subsection (e) of K.S.A.
24 1996 Supp. 59-2946 and amendments thereto or K.S.A. 76-12b03 and
25 amendments thereto are met, and after a careful consideration of rea-
26 sonable alternatives to placement treatment, the court may enter an order
27 granting such authority to the guardian as is appropriate, including con-
28 tinuing authority to readmit the ward to an appropriate treatment facility
29 as may become necessary. Any such grant of continuing authority shall
30 expire two years after the date of final discharge of the ward from such
31 a treatment facility if the ward has not had to be readmitted to that type
32 of a treatment facility during that two-year period of time. Thereafter any
33 such grant of continuing authority may be renewed only after the filing
34 of another petition in compliance with the provisions of this section. Any
35 admission of the ward made pursuant to such authority shall be subject
36 to periodic review in the manner set out in K.S.A. 1996 Supp. 59-2969
37 and amendments thereto.
38 (d) Except as otherwise provided by law, a ward may voluntarily con-
39 sent to the ward's admission to a treatment facility if able and permitted
40 to do so according to the court's findings of fact set forth in the court's
41 order issued at the conclusion of the hearing on the petition for guardi-
43 (e) This section shall be part of and supplemental to the act for ob-
1 taining a guardian or conservator, or both.
2 (f) (1) A guardian may commit such guardian's ward to a treatment
3 facility over the objections of the ward if it appears to the guardian that
4 the ward's ability to receive and evaluate information effectively or to
5 communicate decisions, or both, is impaired to such an extent that the
6 ward lacks the capacity to meet essential requirements for the ward's
7 physical health, mental health or safety.
8 (2) The guardian shall file with the court, within 14 days, a verified
9 petition stating that the ward has been committed to the treatment facility.
10 (3) Within 10 days of receiving the petition of the commitment, the
11 court shall fix a time for a hearing.
12 (4) Notice shall be given to the ward named in the petition, the at-
13 torney of the ward and to such other persons as the court shall direct. If
14 the ward has a spouse, custodian or conservator, notice shall also be given
15 to such person. If the ward does not have an attorney, the court shall
16 appoint an attorney to represent the ward at all stages of the proceedings.
17 The court shall give preference, in the appointment of the attorney, to any
18 attorney who has represented the ward in other matters if the court has
19 knowledge of the prior relationship. The ward shall have the right to
20 choose and to engage an attorney and, in that event, the attorney ap-
21 pointed by the court shall be relieved of all duties by the court.
22 (5) The notice shall state:
23 (A) That a petition has been filed, alleging that the ward is unable to
24 receive and evaluate information effectively or to communicate decisions,
25 or both, and is impaired to such an extent that the ward lacks the capacity
26 to meet essential requirements for the ward's physical health, mental
27 health or safety;
28 (B) the time and place of the hearing; and
29 (C) the name of the attorney appointed to represent the ward and the
30 time and place where the ward shall consult with such attorney.
31 (6) The notice shall be served personally on the ward and the attorney
32 of the ward, not less than five days prior to the date of the hearing and
33 immediate return thereof shall be made. Notice required to be given to
34 any other person shall be given in such manner and for such a period of
35 time as the court shall deem reasonable.
36 (7) Subsection (b) and (c) shall apply to the proceedings pursuant to
37 this subsection.
38 (8) Nothing herein shall prohibit the ward from receiving treatment
39 from the treatment facility during the time such ward is in the facility
40 pursuant to this subsection.
41 Sec. 3. K.S.A. 59-3018 and K.S.A. 1996 Supp. 59-3018a are hereby
1 Sec. 4. This act shall take effect and be in force from and after its
2 publication in the statute book.