59-3080. Authority of conservator or guardian to establish certain trusts; petition; contents; notice; hearing; procedure.
59-3080
59-3080. Authority of conservator or guardian toestablish certain trusts; petition; contents; notice; hearing;procedure.(a) At any time the conservator, or the guardian if theguardian has been granted the authority to exercise control or authority overthe ward's estatepursuant to subsection (e)(8) of K.S.A. 59-3075, and amendmentsthereto, may file averifiedpetition requestingthat the court grant authority to the conservator or guardian to establish anirrevocable trust whichwill enable the conservatee or ward to qualify for benefits from any federal,state or local governmentprogram, or which will accelerate the conservatee's or ward's qualification forsuch benefits.
(b) The petition shall include:
(1) The conservator's or guardian's name and address, and if the conservatoris the petitionerand is both the conservator and the guardian, a statement of that fact, or ifthe guardian is thepetitioner, a statement that the court has previously granted to the guardianthe authority to exercisecontrol or authority over the ward's estate;
(2) the conservatee's or ward's name, age, date of birth, address ofpermanent residence, andpresent address or whereabouts, if different from the conservatee's or ward'spermanent residence;
(3) the name and address of the conservatee's court appointed guardian, if aguardian hasbeen appointed by the court and is different from the conservator;
(4) the names and addresses of any spouse, adult children and adultgrandchildren of theconservatee or ward, and those of any parents and adult siblings of theconservatee or ward, or if nosuch names or addresses are known to the petitioner, the name and address of atleast one adult whois nearest in kinship to the conservatee, or if none, that fact. If no suchnames and addresses areknown to the petitioner, but the petitioner has reason to believe such personsexist, then the petitionshall state that fact and that the petitioner has made diligent inquiry tolearn those names andaddresses;
(5) a statement of whether the secretary of social and rehabilitationservices has an interestin the matter by virtue of the purpose of the trust being to enable theconservatee or ward to qualifyfor benefits from any program administered by the secretary;
(6) the names and addresses of other persons, if any, whom the petitionerknows to have aninterest in the matter, or a statement that the petitioner knows of no otherpersons having an interestin the matter;
(7) a description of the funds or assets of the conservatee or ward which thepetitionerproposes to transfer to a trust;
(8) the factual basis upon which the petitioner alleges the need for such atrust;
(9) the names and addresses of witnesses by whom the truth of this petitionmay be proved;and
(10) a request that the court find that the conservator or guardian should begranted suchauthority, and that the court grant to the conservator or guardian theauthority to establish such a trust.
(c) The petition shall be accompanied by a draft of the instrument by whichthe trust isproposed to be established.
(d) Upon the filing of such a petition, the court shall issue an order fixingthe date, time andplace of a hearing upon the petition, which hearing may be held forthwith andwithout further noticeif those persons named within the petition pursuant to the requirements ofsubsections (b)(4), (b)(5) and(b)(6), as applicable, have entered their appearances, waived notice and agreedto the court'sgranting to the conservator or guardian the authority to establish the proposedtrust. Otherwise, thecourt shall require the petitioner to give notice of this hearing to suchpersons and in such manneras the court may direct, including therewith a copy of the proposed trustinstrument. This noticeshall advise such persons that if they have any objections to this authoritybeing granted to theconservator or guardian, that they must file their written objections with thecourt prior to thescheduled hearing or that they must appear at the hearing to present thoseobjections. The court mayappoint an attorney to represent the conservatee or ward in this mattersimilarly as provided for insubsection (a)(3) of K.S.A. 59-3063, and amendments thereto, and insuch event, thecourt shall require thepetitioner to also give this notice to that attorney.
(e) At the conclusion of the hearing, if the court finds by a preponderanceof the evidencethat:
(1) The establishment of such a trust will enable the conservatee or ward toqualify forbenefits from any federal, state or local government program, or willaccelerate the qualification ofthe 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 theconservatee or ward;
(4) the provisions of the trust will provide for the distribution of thetrust estate for the benefit of the conservatee or ward for special needs notsatisfied from governmental benefits and that such distributions made forspecial needs not satisfied from governmental benefits will only be made insimilar manner and under similar circumstances as the conservatee's or ward'sestate would otherwise have been distributed by the conservator or guardian forthe 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 toterminate the trust during the lifetime of the conservatee or ward, that suchprovisions shall preclude the exercise thereof if such termination of the trustwill disqualify the conservatee or ward from being eligible for anygovernmental benefits; and
(6) the provisions of the trust will provide that, upon termination of thetrust, the remainingtrust estate will first be expended to reimburse the governmental entities forthe benefits which havebeen provided to the conservatee or ward, if such reimbursement was everrequired as a condition for the conservatee's or ward's qualification for suchbenefits, and then any remaining balance shall be paid over and assigned asfollows:
(A) To the conservator, if the termination occurs during the lifetime of theconservatee and the conservatorship remains open, or to the guardian, if thetermination occurs during the lifetime of the ward and the guardianship remainsopen, or to the conservatee or ward, in the event the conservatorship orguardianship has been terminated and the conservatee or ward has been restoredto capacity; or
(B) if the termination of the trust occurs by virtue of the conservatee's orward's death, as follows: (i) If a testamentary power of appointment wasgranted to the conservatee or ward in the trust instrument, pursuant to theconservatee's or ward's valid exercise of such testamentary power ofappointment which specifically references such power of appointment; or (ii) inthe absence of any such power of appointment or to the extent such power wasnot validly exercised by the conservatee or ward over the entirety of the trustassets, to: (a) The devisees and legatees the trustee determines would haveotherwise received such trust assets, and in the manner they would havereceived it, under the provisions of the conservatee's or ward's last will andtestament had such last will and testament been admitted to probate and thetrust 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 theconservatee 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 stateof residence of the conservatee or ward at the time of the death of theconservatee or ward had such trust assets constituted a portion of the estateof the conservatee or ward; or (c) the personal representative of theestate of the conservatee or ward, then the court may grant to the conservatoror guardian the authority to establish such a trust and to transfer specifiedproperty or assets from the conservatee's or ward's estate to the trust. Thecourt shall order the conservator or guardian to report any such transferwithin the conservator's or guardian's next accounting as required by K.S.A. 59-3083, and amendments thereto.
(f) The court may require as a condition of the court's granting to theconservator or guardianthe authority to establish such a trust that the sole trustee of the trust bethe court appointedconservator or guardian, and that the conservator or guardian, acting as thetrustee, shall be subjectto the same requirements and limitations as provided for in this act concerningconservatorships andshall report and account to the court concerning the trust estate the same asif the trust estateremained within the conservatee's or ward's estate.
History: L. 2002, ch. 114, § 31; July 1.