59-3075. Guardian's duties, responsibilities, powers and authorities.
59-3075
59-3075. Guardian's duties, responsibilities, powersand authorities.(a) (1) The individualor corporation appointed by the court to serve as the guardian shall carry outdiligently and in goodfaith, the general duties and responsibilities, and shall have the generalpowers and authorities,provided for in this section as well as any specific duties, responsibilities,powers and authoritiesassigned to the guardian by the court. In doing so, a guardian shall at alltimes be subject to thecontrol and direction of the court, and shall act in accordance with theprovisions of any guardianshipplan filed with the court pursuant toK.S.A. 59-3076, and amendmentsthereto. Thecourt shall havethe authority to appoint counsel for the guardian, and the fees of suchattorney may be assessed ascosts pursuant toK.S.A. 59-3094, and amendments thereto.
(2) A guardian shall become and remainpersonally acquainted with the ward,the spouse of theward and with other interested persons associated with the ward and who areknowledgeable aboutthe ward, the ward's needs and the ward's responsibilities. A guardian shallexercise authority onlyas necessitated by the ward's limitations. A guardian shall encourage the wardto participate inmaking decisions affecting the ward. A guardian shall encourage the ward toact on the ward's ownbehalf to the extent the ward is able. A guardian shall encourage the ward todevelop or regain the skills and abilities necessary to meet the ward's ownessential needs and to otherwise managetheward's own affairs. In making decisions on behalf of the ward, a guardianshall consider theexpressed desires and personal values of the ward to the extent known to theguardian. A guardianshall strive to assure that the personal, civil and human rights of the wardare protected. A guardianshall at all times act in the best interests of the ward and shall exercisereasonable care, diligence andprudence.
(b) A guardian shall have the following general duties, responsibilities,powers andauthorities:
(1) If the ward is a minor, to have the custody and control of the minor, andto provide forthe minor's care, treatment, habilitation, education, support and maintenance;
(2) if the ward is an adult, to take charge of the person of the ward, and toprovide for theward's care, treatment, habilitation, education, support and maintenance;
(3) to consider and either provide on behalf of the ward necessary orrequired consents orrefuse the same;
(4) to assure that the ward resides in the least restrictive settingappropriate to the needs ofthe ward and which is reasonably available;
(5) to assure that the ward receives any necessary and reasonably availablemedical care,consistent with the provisions ofK.S.A. 59-3077, and amendmentsthereto, whenapplicable, andany reasonably available nonmedical care or other services as may be needed topreserve the healthof 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 theward;
(7) to make necessary determinations and arrangements for, and to give thenecessary consents in regard to, the ward's funeral arrangements, burial orcremation, the performance of anautopsy upon the body of the ward, and anatomical gifts of the ward, subject tothe provisions andlimitations provided for inK.S.A. 2009 Supp.65-3228, K.S.A. 65-2893 and65-1734, andamendmentsthereto; and
(8) to exercise all powers and to discharge all duties necessary or proper toimplement theprovisions of this section.
(c) A guardian shall not be obligated by virtue of the guardian's appointmentto use theguardian'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 wardsolely by virtueof the guardian's appointment, nor shall a guardian who exercises reasonablecare in selecting a thirdperson to provide any medical or other care, treatment or service for the wardbe liable for any injuryto the ward resulting from the wrongful conduct of that third person.
(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'sparental 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 anybodily organ,or amputation of any limb, unless such surgery, removal or amputation has beenapproved in advanceby the court, except in an emergency and when necessary to preserve the life ofthe ward or toprevent 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 thecourt following a due process hearing held for the purposes of determiningwhether to approve such, and during which hearing the ward is represented by anattorney appointed by the court;
(6) to consent, on behalf of the ward, to the performance of any experimentalbiomedicalor behavioral procedure on the ward, or for the ward to be a participant in anybiomedical orbehavioral experiment, without the prior review and approval of such by eitheran institutionalreview board as provided for in title 45, part 46 of the code of federalregulations, or if suchregulations do not apply, then by a review committee established by the agency,institution ortreatment facility at which the procedure or experiment is proposed to occur,composed of membersselected for the purposes of determining whether the proposed procedure orexperiment:
(A) Does not involve any significant risk of harm to the physical or mentalhealth of theward, or the use of aversive stimulants, and is intended to preserve the lifeor health of the ward orto assist the ward to develop or regain skills or abilities; or
(B) involves a significant risk of harm to the physical or mental health ofthe ward, or the useof an aversive stimulant, but that the conducting of the proposed procedure orexperiment is intendedeither to preserve the life of the ward, or to significantly improve thequality of life of the ward, orto assist the ward to develop or regain significant skills or abilities, andthat the guardian has beenfully informed concerning the potential risks and benefits of the proposedprocedure or experimentor of any aversive stimulant proposed to be used, and as to how and under whatcircumstances theaversive stimulant may be used, and has specifically consented to such;
(7) to consent, on behalf of the ward, to the withholding or withdrawal oflife-saving or life sustaining medical care,treatment, services or procedures, except:
(A) In accordance with the provisions of any declaration of the ward madepursuant to the provisions of K.S.A. 65-28,101 through 65-28,109, andamendments thereto; or
(B) if the ward, prior to the court's appointment of a guardian pursuant toK.S.A. 59-3067, and amendments thereto, shall have executed adurablepower ofattorney for health care decisionspursuant to K.S.A. 58-629, and amendments thereto, and such shall not have beenrevoked by theward prior thereto, and there is included therein any provision relevant to thewithholding or withdrawal of life-saving or life-sustaining medical care,treatment, services or procedures,then the guardian shallhave the authority toact as provided for therein, even if the guardian has revoked or otherwiseamended that power ofattorney pursuant to the authority of K.S.A. 58-627, and amendments thereto, orthe guardian mayallow the agent appointed by the ward to act on the ward's behalf if theguardian has not revoked orotherwise amended that power of attorney; or
(C) in the circumstances where the ward's treating physician shall certify inwriting to the guardian that the ward is in a persistent vegetative state or issuffering from an illness or other medical condition for which furthertreatment, other than for the relief of pain, would not likely prolong the lifeof the ward other than by artificial means, nor would be likely to restore tothe ward any significant degree of capabilities beyond those the ward currentlypossesses, and which opinion is concurred in by either a second physician or byany medical ethics or similar committee to which the health care provider hasaccess established for the purposes of reviewing such circumstances and theappropriateness of any type of physician's order which would have the effect ofwithholding or withdrawing life-saving or life sustaining medical care,treatment, services or procedures. Such written certification shall be approvedby an order issued by the court;
(8) to exercise any control or authority over the ward's estate, except ifthe court shallspecifically authorize such. The court may assign such authority to theguardian, including theauthority to establish certain trusts as provided inK.S.A. 59-3080,and amendmentsthereto, andmay waive the requirement of the posting of a bond, only if:
(A) Initially, the combined value of any funds and property in the possessionof the ward or in the possession of any other person or entity, but which theward is otherwise entitled to possess,equals $10,000 or less; and
(B) either the court requires the guardian to report to the court thecommencement of theexercising of such authority, or requires the guardian to specifically requestof the court the authorityto commence the exercise of such authority, as the court shall specify; and
(C) the court also requires the guardian, whenever the combined value of suchfunds andproperty exceeds $10,000, to:
(i) File a guardianship plan as provided for inK.S.A. 59-3076,and amendmentsthereto,which contains elements similar to those which would be contained in aconservatorship plan asprovided for inK.S.A. 59-3078, and amendments thereto;
(ii) petition the court for appointment of a conservator as provided for inK.S.A. 59-3058, 59-3059 or 59-3060, and amendments thereto; or
(iii) notify the court as the court shall specify that the value of theconservatee's estate hasequaled or exceeded $10,000, if the court has earlier appointed a conservatorbut did not issue lettersof conservatorship pending such notification; and
(9) to place the ward in a treatment facility as defined inK.S.A. 59-3077, andamendmentsthereto, except if authorized by the court as provided for therein.
(f) The guardian shall file with the court reports concerning the status ofthe ward and theactions of the guardian as the court shall direct pursuant toK.S.A. 59-3083, andamendments thereto.
History: L. 2002, ch. 114, § 26;L. 2007, ch. 127, § 30; July 1.