59-3067. Trial; procedure; appointment of guardian or conservator; denial.
59-3067
59-3067. Trial; procedure; appointment of guardianor conservator; denial.(a) The trial upon a petition filed pursuant toK.S.A. 59-3058,59-3059, 59-3060, 59-3061 or 59-3062, and amendments thereto,shall be held at the timeand place specified in the court's order entered pursuant toK.S.A. 59-3063, andamendments thereto,unless an order of advancement, continuance orchange of place has been issuedpursuant toK.S.A. 59-3065, and amendments thereto, and may beconsolidatedwith the trialprovided for in thecare and treatment act formentally ill persons,K.S.A. 59-2945 et seq., andamendmentsthereto, or the care and treatment act for persons with an alcoholor substance abuseproblem,K.S.A. 59-29b45, and amendments thereto, if the petitionalsoincorporates the allegations required by, and isfiled in compliance with, the provisions of either of those acts.
(b) If the petition alleges thatthe proposed ward or proposed conservatee is an adult with an impairment inneed of a guardian orconservator, or both, the trial may be held to a jury if, at least four dayspriorto the date of the trial, awritten demand for jury trial is filed with the court by the proposed ward orproposed 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 shallbe selected as provided by law. Notwithstanding any provision of K.S.A. 43-166,and amendments thereto, to thecontrary, a panel of prospective jurors may be assembled by the clerk upon lessthan 20 days noticein this circumstance. From this panel, 12 qualified jurors who have beenpassed for cause shall beempaneled. Prior service as a juror in any other court shall not exempt, forthat reason alone, anyperson from jury service hereunder. From the panel so obtained, the proposedward or proposedconservatee, or the attorney for the proposed ward or proposed conservatee,shall strike one name;then the petitioner, or the petitioner's attorney, shall strike one name; andso on alternatively untileach has stricken three names so as to reach the jury of six persons. Duringthis process, if eitherparty neglects or refuses to aid in striking the names, the court shall strikea name on behalf of suchparty.
(d) The petitioner and the proposed ward or proposed conservatee shall eachbe afforded an opportunity to appear at the trial, totestify and to present and cross-examine witnesses. Ifthe trial has been consolidated with a trial being held pursuant to either thecare and treatment actfor mentally ill persons or the care and treatment act for persons with analcohol or substanceabuse problem persons not necessary for the conduct of theproceedings may be excluded asprovided for in those acts. Thetrial shall beconducted in as informal a manner as may beconsistent with orderly procedure. The court shall have the authorityto receive all relevant andmaterial evidence which may be offered, including the testimony or writtenreport, findings orrecommendations of any professional or other personwho has examined or evaluated the proposed ward or proposed conservatee and thetestimony andwritten findings and recommendations of the secretary of social andrehabilitation services or any otherperson appointed by the court toconduct an investigation pursuant toK.S.A. 59-3065, and amendmentsthereto.Such evidence shallnot be privileged for the purpose of this trial.
(e) Upon completion of the trial:
(1) If the court finds by clear and convincing evidence that the proposedward or proposedconservatee is an adult with an impairment in need of a guardian or aconservator, or both, or a minorin need of a guardian or a conservator, or both, or a minor with an impairmentin need of a guardianor a conservator, or both, or a person who has been previously adjudged asimpaired in another state,the court, pursuant toK.S.A. 59-3068, and amendments thereto, shallappoint aqualified and suitableindividual or corporation as the guardian or conservator, or both, and shallspecify what duties, responsibilities, powers and authorities as provided forinK.S.A. 59-3075, 59-3076, 59-3077, 59-3078 or 59-3079, andamendments thereto, the guardian orconservator shall have. If the courtappoints co-guardians or co-conservators, or both, the court shall specifywhether such co-guardiansor co-conservators, or both, shall have the authority to act independently, toact only in concert, orunder what circumstances or with regard to what matter they may actindependently and when theymay act only in concert.
(2) If a jury has been demanded in the case of an adult and the jury finds byclear andconvincing evidence that the proposed ward or proposed conservatee is unable tomeet essentialneeds for physical health, safety or welfare, or is unable to manage suchperson's estate, then thecourt shall determine if the proposed ward or proposed conservatee is in needof a guardian or aconservator, or both, and if so, the court, pursuant toK.S.A. 59-3068, andamendments thereto, shallappoint a qualified and suitable individual or corporation as the guardian orconservator, or both, andshall specify what duties, responsibilities, powers and authorities as providedfor inK.S.A. 59-3075, 59-3076, 59-3077, 59-3078 or 59-3079, andamendments thereto, the guardian orconservator shall have. If the court appoints co-guardians or co-conservators,or both, the court shallspecify whether such co-guardians or co-conservators, or both, shall have theauthority to actindependently or whether they shall be required to act only in concert.
(3) If the court finds by clear and convincing evidence that the proposedconservatee is aperson in need of an ancillary conservator, the court, pursuant toK.S.A. 59-3068, andamendments thereto, shall appoint a qualified and suitable individual orcorporationas the ancillaryconservator, and shall specify what duties, responsibilities, powers andauthorities as provided for inK.S.A. 59-3078 or 59-3079, andamendments thereto,the ancillary conservator shall have. Ifthe court appoints co-ancillary conservators, the court shall specify whethersuch co-ancillaryconservators shall have the authority to act independently or whether theyshall be required to actonly in concert.
(f) If the court does not find by clear and convincing evidence that theproposed ward orproposed conservatee is an adult with an impairment in need of a guardian or aconservator, or both,or a minor in need of a guardian or a conservator, or both, or a minor with animpairment in need ofa guardian or a conservator, or both, or a person who has been previouslyadjudged as impaired inanother state, or a person in need of an ancillary conservator, or does notfind that the proposed wardor proposed conservatee is in need of a guardian or a conservator, even thoughthe jury hasdetermined that the proposed ward or proposed conservatee is unable to meetessential needs forphysical health, safety or welfare, or is unable to manage such person'sestate, because otherappropriate alternatives exist and are sufficient to meet those needs of theproposedward or proposedconservatee, then the court shall deny the requested appointments.
History: L. 2002, ch. 114, § 18; July 1.