59-3086. Allowance and settlement on conservator's accounting; petition; contents; notice; hearing; procedure; forfeiture of conservator's bond; final release.
59-3086
59-3086. Allowance and settlement on conservator'saccounting; petition; contents; notice; hearing; procedure; forfeiture ofconservator's bond; final release.(a) At the time ofor at any time after the filing of an accounting by the conservator, theconservator may file with thecourt a verified petition requesting a hearing on that accounting for thepurposes of allowance andsettlement. The petition shall include:
(1) The conservator's name and address, and if the conservator is also theguardian, that fact;
(2) the conservatee's name, age, date of birth, address of permanentresidence, and presentaddress or whereabouts, if different from the conservatee's permanentresidence;
(3) the name and address of the court appointed guardian, if different fromthe conservator;
(4) the names and addresses of any spouse, adult children and adultgrandchildren of theconservatee, and those of any parent and adult siblings of the conservatee, orif no such names oraddresses are known to the petitioner, the name and address of at least oneadult who is nearest inkinship to the conservatee, or if none, that fact. If no such names oraddresses are known to theconservator, but the conservator has reason to believe that such persons exist,then the petition shallstate that fact and that the conservator has made diligent inquiry to learnthose names and addresses;
(5) the names and addresses of other persons, if any, whom the conservatorknows to havean interest in the matter, or a statement that the petitioner knows of no otherpersons having aninterest in the matter;
(6) designation of the accounting period for which allowance and settlementis sought; and
(7) a request that this accounting be accepted and that the court issue anorder providing that all matters related thereto are finally allowed andsettled.
(b) Upon the filing of such a petition, the court shall issue an order fixingthe date, time andplace of a hearing on the petition, which hearing may be held forthwith andwithout further noticeif those persons named within the petition pursuant to the requirement ofsubsections (a)(3), (a)(4) and(a)(5), as applicable, have entered their appearances, waived notice, andagreed to the court'saccepting the accounting and issuing an order of final allowance andsettlement. Otherwise, thecourt shall require the conservator to give notice of this hearing to suchpersons in such manner asthe court may specify, including therewith a copy of the conservator's petitionand a copy or copiesof the accounting or accountings for which the conservator requests an order offinal allowance andsettlement. This notice shall advise such persons that if they have anyobjections to the accountingor accountings for which final allowance and settlement is sought that theymust file their writtenobjections with the court prior to the scheduled hearing or that they mustappear at the hearing topresent those objections. The court may appoint an attorney to represent theconservatee in thismatter similarly as provided for in subsection (a)(3) of K.S.A. 59-3063, andamendments thereto, and in such event,the court shall require the conservator to also give this notice to thatattorney.
(c) In the absence of a petition having been filed by the conservatorpursuant to this section,the court may set a hearing to determine whether an order of final allowanceand settlement shouldbe issued with regard to any accounting which has been previously filed by theconservator, and mayrequire the conservator or some other person to give notice thereof as providedfor herein.
(d) The hearing shall be conducted in as informal a manner as may beconsistent with orderlyprocedure. The court shall have the authority to receive all relevant andmaterial evidence whichmay be offered, including the testimony or written report, findings orrecommendations of any professional or other person who has familiarity withthe conservatee or the conservatee's estate.The court may review the court's prior orders, any conservatorship plan whichhas been filedpursuant to K.S.A. 59-3079, and amendments thereto, and any reportsand accountingswhich havebeen filed by the guardian or conservator, or both, even if previously approvedor allowed, todetermine whether the current accounting seems reasonable in light of the pastreports oraccountings, and to determine whether any further proceedings under this actmay be appropriate.The court shall give to the conservator, to the conservatee, and to otherinterested persons, theopportunity to present evidence to the court concerning the actions of theconservator, theconservatee's estate and the recommendations of such persons.
(e) At the conclusion of the hearing, if the court finds, by a preponderanceof the evidence,that the accounting accurately accounts for the conservatee's estate, showsappropriateadministration on the part of the conservator, that any fees of the conservatorare reasonable, and thatdue notice and an opportunity to be heard has been provided to any interestedparties, the court shallapprove the accounting and order that it is allowed and settled. Suchallowance and settlement shallrelieve the conservator and the conservator's sureties from liability for allacts and omissions whichare fully and accurately described in the accounting, including the investmentsof the assets of theconservatee's estate.
(f) If the court finds by a preponderance of the evidence that theconservator has innocentlymisused any funds or assets of the conservatee's estate, the court shall orderthe conservator to repaysuch funds or return such assets to the conservatee's estate. If the courtfinds that the conservatorhas embezzled or converted for the conservator's own personal use any funds orassetsof the conservatee'sestate, the court shall find the conservator liable for double the value ofthose funds or assets, as provided for in K.S.A. 59-1704, and amendmentsthereto. In either case, the court may order the forfeiture of theconservator's bond, or such portion thereof as equals the value of such fundsor assets, including anylost earnings and the costs of recovering those funds or assets, includingreasonable attorney fees,as the court may allow, and may require of the surety satisfaction thereof.Neither the conservator,nor the conservator's estate or surety, shall be finally released from suchbond until the satisfactionthereof.
(g) At no time shall the conservator, or the conservator's estate or surety,be finally releasedfrom the bond required by the court pursuant toK.S.A. 59-3069, andamendmentsthereto until afinal accounting has been filed, allowed and settled as provided for herein.
(h) The court may issue a final order of allowance and settlement upon thefilingof a final accounting and a finding by the court that the following haveoccurred:
(1) Reimbursement to the appropriate agency for any medical assistancepayments, if any, received under subsection (e) of K.S.A. 39-709, and amendmentthereto, or any similar laws of any other state for or on behalf of aconservatee or a predeceased spouse of the conservatee, but only to the extentallowed by law;
(2) delivery of any remaining funds and assets of the conservatee's estateto the person or persons entitled to such funds or assets; and
(3) presentation to the court of receipts for subsections (1) and (2).
The conservator, the conservator's estate and the conservator's surety shall bereleased upon the issuance of the court's final order of allowance andsettlement.
History: L. 2002, ch. 114, § 37;L. 2007, ch. 190, § 15; July 1.