Exploring Legal Guardianship in Kansas: A Detailed Guide

An Overview of Legal Guardianship

Legal guardianship is a court-enforced relationship in which an individual (known as the guardian) is responsible for the care, custody and control over the person and/or property of a minor or disabled person. In Kansas, the legal guardian is responsible for the ward’s care, but also has the authority to make all major life decisions for the ward. These decisions include where and how the ward lives, the care and education of the ward, what happens with the ward’s financial assets and a variety of other personal matters.
In Kansas, a person can become a legal guardian of a minor child. Typically, a parent would apply to the Kansas court to have a designated individual appointed as guardian of their child or children. A minor cannot have a guardian appointed unless he or she has at least one living parent who is unable to care for the minor. Generally , a fee must be paid to the court when a petition is filed.
There are three likely scenarios in which a guardian might be appointed for a minor child:
Legal guardianship of a child ceases once the child reaches the age of eighteen. A minor child turns eighteen on its birthday, even if that day falls on a weekend or holiday. Guardianship over adults tends to be more complex and, unfortunately, permanent.
A legal guardian may be appointed for a disabled person who has lost the ability to care for him- or herself on a temporary or permanent basis. In this case, the guardian is responsible for the care, custody and control of the adult. Legal guardians are required to make annual reports to the court about the condition of their ward and must get prior approval from the court before taking certain actions, such as selling or transferring real estate or investing trust property.

Who Can Be a Guardian in Kansas?

In order to be eligible for the role of legal guardian in Kansas, both guardians and conservators must be adults (at least 18 years of age). Additionally, the guardian must reside in the state of Kansas. However, an exception to this rule may be made, provided that the applicant has established sufficient business connections in the state. Guardians can be previous residents of the state, or have relatives in the state. Relatives may be either people related by blood or those who have been nominated as prospective guardian by a member of the ward’s family. In general, these rules follow those that determine eligibility to serve as a personal representative for a decedent’s estate.
Ineligible candidates to be guardians include minors, persons with limited mental capacity, those who would be unsuitable guardians, convicted felons or those with certain mental illnesses. The court is required to appoint a relative over an unrelated candidate, but if there are multiple relatives who want to be named guardian, they are required to attend a hearing, and the court may choose a different person if they do not appear.

Different Types of Guardianship

In Kansas, there are a few different ways that someone can be appointed as a legal guardian, and similar to conservators, those types of guardianship include a guardian of a minor, a guardian of an adult, and special situations such as emergency or temporary guardianship.
Guardianship of a Minor
Oftentimes, the biggest question from parents is what happens if I die before my child is an adult? Well, in some cases parents do not like how the Kansas statute handles this issue. But, there is a way parents can dictate where their deposits go and who they would like to take over guardianship of their children.
Guardianship of an Adult
Again, there are two types of guardianship of an adult: limited and full. Limited guardianship allows a person, usually for a limited amount of time, to once again make decision for the incapacitated person. Full guardianship gives that same person the right to be the ultimate decision maker in all decisions. The person with full guardianship can establish contracts, make health decisions, agree to treatment options, sell the person’s house, etc., without any permission from the person who cannot live independently. Full guardianship grants so much authority that courts are particularly concerned when someone potentially loses their independence. Therefore, when a petition for guardianship of an adult is filed, the court goes through much more scrutiny to decide if a full guardian is necessary.
Emergency Guardianship
Again, this is only for short periods of time. Emergency guardianships are granted based on the immediate needs of a person who has had an illness and or accident that, in turn, has incapacitates them. What this means is that the judge will decide, in essence, that the overnight guardianship, if you will, is necessary. The court has sole authority to extend that time period. Getting back to the issue of an emergency guardianship, once the judge has agreed that there is a need for this type of guardianship, a person is named and they have the title of "emergency guardian." That person now has authority over that individual’s health care and financial decisions. This period may last for a few days to a few weeks.

The Guardianship Process

The Kansas guardianship process begins by filing a petition with the district court in the proposed guardian’s county. The Kansas guardianship form requires information about the proposed guardianship, the persons involved and the reasons the judge should grant an appointment for guardianship. The petitioner also must file a Physician’s Certificate regarding Incapacity. The certificate must be dedicated to the proceeding, and state a physician’s opinion about the individual’s incapacity.
The proposed guardian may need to be represented by an attorney at this point, and work with an experienced estate planning lawyer will make the guardianship process much easier. If the proposed guardian is not a family member, the court likely will appoint an attorney to represent the person allegedly in need of a guardian. You must give this attorney notice of the proceedings. Also, the Kansas Department for Aging and Disability Services (KDADS) generally will send someone to the hearing if it involves an adult alleged to be incompetent. A KDADS representative will participate in the hearing and write up the associated report for the judge. Also, someone generally will need to investigate and evaluate the costs that the guardianship of the alleged incapacitated person will involve – this may be done by the same KDADS representative or someone else.
Next, you will attend a hearing with the KDADS representative, the judge, your lawyer (if applicable), the alleged incapacitated person’s lawyer (if applicable), and the proposed guardian. The hearing will involve testimony from you, the alleged incapacitated person, the doctor who signed the medical certificate, and other witnesses. You may also offer deposition testimony or other written evidence.
The judge will consider all of the evidence provided at the hearing and then issue a judgment granting or denying guardianship. If the judge grants guardianship, a record will be placed on hold with the court that reflects the judgment.
Kansas law does not allow another person known as a "plenary guardian" to have full control over another person’s affairs. Plenary guardianship means that the guardian possesses all of the powers of the natural guardian and all of the powers allowed to a guardian by the Kansas Probate Code. All plenary guardianships must end at the latest 5 years after they begin, unless the court extends the guardianship for good cause. The court normally would extend a plenary guardianship until the court can find a less restrictive guardianship, which is in the best interests of the ward.

What Does a Guardian Do?

Under the Kansas statutes, K.S.A. 59-308, each of the following duties and powers are given by the court to the guardian:

(1) The authority to decide where the ward will live.
(2) The authority to make arrangements for the care of the ward.
(3) The duty to protect the ward’s estate by conserving, investing or appropriately spending the estate as may be required by a court order.
(4) The authority to obtain and manage the ward’s funds.
(5) The authority to pay existing bills incurred by the ward before the guardianship or incurred by the ward during the guardianship.
(6) The authority to deal with creditors and others.
(7) The authority to take control of the ward’s money.
(8) The authority to apply to the court for additional powers that the court finds necessary for the best interest of the ward and the ward’s estate.
(9) The responsibility of regularly reporting to the court. With each report, the guardian must provide a schedule of the current income and expenses of the ward and a description of the account balance/asset values in the name of the ward.

Legal Rights of Wards and Guardians

Once a person has been appointed as the guardian of another individual, there are specific rights that are immediately granted. Under the Kansas Guardianship Code, guardians have significant legal authority, but it does not come from nowhere and is still subject to review under the code.
The guardian has the right to do the following: Wards (the individuals under the care of the guardian) also have rights from the code. The code states that "in every decision made on behalf of a ward, the ward’s requirements, wishes, and opinions shall be considered , the amount of consideration depending upon the warden’s understanding and judgment and the frequency with which the ward’s opinions are expressed."
There are limits to a guardian’s rights, which are sometimes challenged by the court or the primary attorney on the case. Under the code, a guardian cannot do any of the following without prior authorization or an order of the court: The code also lists specific rights that the ward retains, including the right to marry, the right to keep a driver’s license, and the right to vote. Other specific rights and list of limitations may be used as supporting evidence in future hearings and investigations about a guardian’s actions in relation to their wards.

Alternatives to Guardianship

There are also situations where some of the other alternatives could be more appropriate than guardianship. To start, there is a distinction between guardian and conservator. A guardian is someone who has the authority to make decisions on behalf of another person. A conservator is someone who has the authority to handle the financial affairs of another person. Oftentimes, people that may be appropriate for a guardianship do not have sufficient assets to necessitate a conservatorship, but it is good to understand the distinct roles.
In some circumstances, a power of attorney could be used in lieu of legal guardianship. For example, estate planning will often entail a power of attorney. This is a document that appoints an agent to make decisions on behalf of the principal. It is typically very broad. The problem with a power of attorney is that it becomes ineffective once the principal is deemed incapacitated unless it contains a provision known as springing durability. However, if a durable power of attorney is signed, it is very intrusive and it can be taken advantage of by the agent. Third parties should recognize the potential for abuse, and they should require the agent to show them a copy of the power of attorney if there is any reason for suspicion. Finally, there is the practical reality that if the agent is a family member, it could be more difficult to persuade someone to obtain a guardianship if they are abusing the power of attorney.
In addition to legal guardianship and powers of attorney, Kansas does allow for appointment of a parent for a minor as a "personal representative." This is not entirely the same as a guardian as it lacks some of the authority a guardian would have. However, this designation could be an appropriate alternative to guardianship for the parents of a minor whose parental rights have not been terminated.

Guardianship Issues

Challenges in guardianship and conservatorship cases can exist in various forms. First and foremost, a legal dispute can arise when opposing parties seek the same appointment as guardian or conservator. Contesting parties also have widely different views about the amount of bond a fiduciary should post and what the applicable compensation schedule should be. Depending on the circumstances, these issues are all resolved by the judge during the initial hearing. There are many other potential challenges too. A challenger could argue an adequate alternative exists that is less restrictive, such as a durable power of attorney. Oftentimes a family member may simply want to be appointed guardian because they believe they can better help the person than an outsider. A good attorney is needed to address any and all objections or responses.
Apart from opposing familial parties more often is the issue of competency. A family member may have witnessed behaviors or events leaving them to believe that their loved one is incompetent, but if they have taken the time to talk with the person and spend time with them then he/she may have a different perspective than the words of an outsider. A huge difference exists between assessing competency for a narrow purpose, such as signing a waiver, versus global competency applicable to all areas of one’s life. Family members and friends can also try to contest a petition for appointment of guardian or conservator by arguing the person is not incapacitated or asserting that the petitioner is unqualified.

Hiring an Attorney

As with other family law matters, guardianship cases can be complicated. Even if you understand the legal process, guardianship cases can be emotionally charged and complex. New cases arise every day in Kansas; very few lawyers have the time and resources to stay current on all of these new developments. For these reasons, it is a good idea to consult with, and ultimately hire, an attorney to represent you throughout the guardianship process. A guardianship case is initiated by filing a petition in the district court of the county where the alleged person who needs assistance (the Proposed Ward) resides. If you are seeking a guardianship for property reasons (b of K.S.A. 59-3072), the person you are seeking a guardianship for must have resided in the county for at least 60 days prior to the filing of the petition. If you are seeking a guardianship for personal reasons (c of K.S.A. 59-3072), the Proposed Ward must have resided in the county for at least 60 days or have been present in the county for at least 60 days in the past 6-month period. Once the petition is filed , a number of things will happen in the following weeks and potentially months. When filing the petition a list of potential disinterested persons must be served as well as the Proposed Ward in property cases. In personal cases the relatives identified in the petition must be notified. Appointments of other parties must be obtained, medical examination of the Proposed Ward and appointment of a visitor must occur, hearing notices must be published in the newspaper, accounts and inventories must be filed, special judges may be appointed, and much more. The proceedings may require a bonding requirement which can vary in amount depending on the assets of the individual. Given the various legal requirements and possible litigation that can arise, it is critical that you seek a qualified legal practitioner to help you through your case. To locate a lawyer, you may contact your local or state bar association or consult other individuals or businesses in your community.