K.S.A. § 59-30,155 — KS Code / Chapter 59 / Article 30 / Section 59-30,155
59-30,155 - Special limitations on powers of guardian for adult.
Status: in_force

59-30,155. Special limitations on powers of guardian for adult. (a) A guardian for an adult shall not initiate the commitment of the adult to a mental health facility except in accordance with the care and treatment act for mentally ill persons, K.S.A. 59-2945 et seq., and amendments thereto.

(b) A guardian for an adult shall not restrict the ability of the adult to communicate, visit or interact with others, including receiving visitors and making or receiving telephone calls, personal mail or electronic communications, including through social media, or participating in social activities, unless:

(1) Authorized by the court by specific order;

(2) a protective order or a protective arrangement instead of guardianship is in effect that limits contact between the adult and a person; or

(3) the guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological or financial harm to the adult and the restriction is:

(A) For a period of not more than seven business days if the person has a family or pre-existing social relationship with the adult; or

(B) for a period of not more than 60 days if the person does not have a family or pre-existing social relationship with the adult.

(c) A guardian for an adult shall not consent, on behalf of the adult, to:

(1) Any psychosurgery, removal of any bodily organ or amputation of any limb, unless such surgery, removal or amputation has been approved in advance by the court, except in an emergency and when necessary to preserve the life of the adult or to prevent serious and irreparable impairment to the physical health of the adult;

(2) the sterilization of the adult, unless approved by the court following a due process hearing held for the purposes of determining whether to approve such, and during which hearing the adult is represented by an attorney appointed by the court;

(3) the performance of any experimental biomedical or behavioral procedure on the adult, or for the adult to be a participant in any biomedical or behavioral experiment, without the prior review and approval of such by either an institutional review board as provided for in title 45, part 46 of the code of federal regulations, or if such regulations do not apply, then by a review committee established by the agency, institution or treatment facility at which the procedure or experiment is proposed to occur, composed of members selected for the purposes of determining whether the proposed procedure or experiment:

(A) Does not involve any significant risk of harm to the physical or mental health of the adult, or the use of aversive stimulants, and is intended to preserve the life or health of the adult or to assist the adult to develop or regain skills or abilities; or

(B) involves a significant risk of harm to the physical or mental health of the adult, or the use of an aversive stimulant, but that the conducting of the proposed procedure or experiment is intended either to preserve the life of the adult, or to significantly improve the quality of life of the adult, or to assist the adult to develop or regain significant skills or abilities, and that the guardian has been fully informed concerning the potential risks and benefits of the proposed procedure or experiment or of any aversive stimulant proposed to be used, and as to how and under what circumstances the aversive stimulant may be used, and has specifically consented to such;

(4) the withholding or withdrawal of life-saving or life-sustaining medical care, treatment, services or procedures, except:

(A) In accordance with the provisions of any declaration of the adult made pursuant to the provisions of K.S.A. 65-28,101 through 65-28,109, and amendments thereto;

(B) if the adult, prior to the court's appointment of a guardian, has executed a durable power of attorney for healthcare decisions pursuant to K.S.A. 58-625, et seq., and amendments thereto, and that durable power of attorney has not previously been revoked by the adult, and it includes any provision relevant to the withholding or withdrawal of life-saving or life-sustaining medical care, treatment, services or procedures, then the guardian shall act as provided for in that power of attorney, even if the guardian has revoked or amended that power of attorney pursuant to the authority of K.S.A. 58-627, and amendments thereto; or

(C) in accordance with subsection (d) or (e).

(d) (1) It shall be presumed that every adult under guardianship has directed such adult's guardian to direct the adult's healthcare providers to provide such adult with nutrition or hydration or both to a degree that is sufficient to sustain life. No court, guardian or any person shall have the authority to make a decision on behalf of an adult who is legally incapable of making healthcare decisions to withhold or withdraw nutrition or hydration or both from such adult except if:

(A) The adult, when legally capable of making healthcare decisions, executed, expressly and with informed consent, a written directive specifically authorizing the withholding or withdrawal of nutrition or hydration or both under the adult's current circumstances. Such directive shall include, but not be limited to, a declaration or a durable power of attorney for healthcare decisions described in subsection (c)(4); or

(B) the adult's treating physician certifies in writing that, in the physician's reasonable medical judgment:

(i) The provision of nutrition or hydration or both to the adult would hasten death; or

(ii) the adult would be incapable of digesting or absorbing the nutrition or hydration or both so that its provision would not contribute to sustaining the adult's life.

(2) (A) Prior to withholding or withdrawing nutrition or hydration or both under paragraph (1)(B), a motion shall be filed with the court with the written certification from the adult's treating physician.

(B) Notice of such filing shall be provided to the adult subject to guardianship, any attorney representing the adult subject to guardianship and any other person whom the court determines at the time of filing of the petition.

(C) The court shall appoint an attorney for the adult. The court may request that the state protection and advocacy agency as provided by K.S.A. 65-5603(a)(10) or 74-5515, and amendments thereto, or 42 U.S.C. § 15043, 42 U.S.C. § 10805 or 29 U.S.C. § 794e, represent the adult.

(D) The court shall hold a hearing within 72 hours or as soon thereafter as the court is available.

(E) The court shall not authorize withholding or withdrawing nutrition or hydration or both unless the court finds by clear and convincing evidence that:

(i) The provision of nutrition or hydration or both to the adult would hasten death; or

(ii) the adult would be incapable of digesting or absorbing the nutrition or hydration or both so that its provision would not contribute to sustaining the adult's life.

(3) (A) A cause of action for injunctive relief may be maintained:

(i) Against any person who is reasonably believed to be about to violate or who is in the course of violating this subsection; or

(ii) to secure a court determination, notwithstanding the position of a guardian, that the adult legally incapable of making healthcare decisions, when legally capable of making such decisions, executed expressly and with informed consent, a written directive to withdraw or withhold hydration or nutrition or both in the applicable circumstances. Such written directive shall be presumed valid unless there is clear and convincing evidence to the contrary.

(B) The action may be brought by any person who is:

(i) The spouse, parent, child or sibling of the adult;

(ii) a current healthcare provider of the adult;

(iii) the guardian of the adult;

(iv) the state protection and advocacy agency as provided by K.S.A. 65-5603(a)(10) or 74-5515, and amendments thereto, or 42 U.S.C. § 15043, 42 U.S.C. § 10805 or 29 U.S.C. § 794e; or

(v) a public official with appropriate jurisdiction to enforce the laws of this state.

(C) Pending the final determination of the court, the court shall direct that nutrition or hydration or both be provided to such adult unless the court determines that paragraph (3)(A) is applicable.

(e) (1) No court, guardian or any person shall have the authority to make a decision on behalf of an adult who is legally incapable of making healthcare decisions to withhold or withdraw life-saving or life-sustaining medical care, treatment, services or procedures from such adult except if:

(A) The adult, when legally capable of making healthcare decisions, executed, expressly and with informed consent, a written directive specifically authorizing the withholding or withdrawing of life-saving or life-sustaining medical care, treatment, services or procedures from such adult under the adult's current circumstances. Such directive shall include, but not be limited to, a declaration or a durable power of attorney for healthcare decisions described in subsection (c)(4); or

(B) (i) The adult's treating physician certifies in writing to the guardian that the adult is suffering from a severe illness and that life-sustaining medical care is objectively futile and would only prolong the dying process; and

(ii) such opinion is concurred in by either a second physician or by any medical ethics or similar committee to which the healthcare provider has access established for the purposes of reviewing such circumstances and the appropriateness of any type of physician's order that would have the effect of withholding or withdrawing life-saving or life-sustaining medical care.

(2) (A) Prior to withholding or withdrawal of life-saving or life-sustaining medical care, treatment, services or procedures under paragraph (1)(B), a motion shall be filed with the court with the written certification from the adult's treating physician.

(B) Notice of such filing shall be provided to the adult subject to guardianship, any attorney representing the adult subject to guardianship and any other person whom the court determines at the time of filing of the petition.

(C) The court shall appoint an attorney for the adult. The court may request that the state protection and advocacy agency as provided by K.S.A. 65-5603(a)(10) or 74-5515, and amendments thereto, or 42 U.S.C. § 15043, 42 U.S.C. § 10805 or 29 U.S.C. § 794e, represent the adult.

(D) The court shall hold a hearing within 72 hours or as soon thereafter as the court is available.

(E) The court shall not authorize withholding or withdrawal of life-saving or life-sustaining medical care, treatment, services or procedures unless the court finds by clear and convincing evidence that:

(i) The adult is suffering from a severe illness and that life-sustaining medical care is objectively futile and would only prolong the dying process; and

(ii) such opinion is concurred in by either a second physician or by any medical ethics or similar committee to which the healthcare provider has access established for the purposes of reviewing such circumstances and the appropriateness of any type of physician's order that would have the effect of withholding or withdrawing life-saving or life-sustaining medical care.

(f) A guardian for an adult shall not exercise any control or authority over the adult's estate, unless specifically authorized by the court. Any guardian who is granted such authority shall prepare an inventory and provide notice of the inventory as provided in K.S.A. 59-30,181, and amendments thereto. The court may assign such authority to the guardian and may waive the requirement of the posting of a bond, only if:

(1) Initially, the combined value of any funds and assets owned by the adult equals $25,000 or less; and

(2) either the court requires the guardian to report to the court the commencement of the exercising of such authority, or requires the guardian to obtain court authorization to commence the exercise of such authority, as the court shall specify; and

(3) the court also requires the guardian, whenever the combined value of such funds and property exceeds $25,000, to:

(A) File a guardian's plan as provided for in K.S.A. 59-30,156, and amendments thereto, that contains elements similar to those that would be contained in a conservator's plan as provided for in K.S.A. 59-30,180, and amendments thereto;

(B) petition the court for appointment of a conservator; or

(C) notify the court as the court shall specify that the value of the adult's estate has equaled or exceeded $25,000, if the court has earlier appointed a conservator but did not issue letters of conservatorship pending such notification;

(g) A guardian for an adult shall not access digital assets of the adult unless authorized by the court pursuant to K.S.A. 58-4814, and amendments thereto.