GUARDIANSHIP ATTORNEY IN NEWTON, KANSAS

For children and adults who experience incapacitation due to injury, intellectual and developmental disabilities, mental illness, or dementia, the impact a guardian can have on their lives is extremely significant. The consequences for the ward can be a matter of life or death, which is why the National Guardianship Association espouses that all guardians care for their wards with the “highest allegiance to the person.”

Although all guardians must be appointed by the court in Kansas, who becomes one may be informed by other legal documents. This could include a parent’s preference for a guardian of a minor child expressed in a will or the naming of an attorney-in-fact in an estate plan’s durable power of attorney.  

If you have been thinking about appointing a guardian or have been appointed as someone’s guardian, you probably have many questions. At Cornerstone Law, LLC, I have been helping clients from Newton, Kansas, as well as Wichita, Hutchinson, El Dorado, McPherson, Hillsboro, and across the state with guardianships and estate planning for more than 40 years. If you want to learn more about guardianships, I can help.

HOW DO GUARDIANSHIPS WORK IN KANSAS?

A guardianship describes a legal status in which a guardian manages the safety, welfare, and health of a minor or an adult with an impairment that renders them unable to competently take care of themselves. The person appointed by the court is the guardian and the individual whose needs they manage is the ward.

WHO CAN BE A GUARDIAN?

Kansas courts may give preference to any of the following to serve as a guardian:

• The person named in the proposed ward’s durable power of attorney;

• The person nominated by a natural guardian, such as by a parent in their will;

• The person nominated by the party who filed a petition requesting guardianship for the ward;

• A spouse, adult child, or other close member of the ward’s family; and,

• The person nominated by a minor child over the age of 14.

In addition to lay guardians, there are professional and public guardians. The Kansas Guardianship Program, for example, is a nonprofit corporation that recruits, trains, and supervises volunteers who then become guardian nominees. 

WHAT CAN GUARDIANS DO?

Among the duties guardians exercise without prior approval of the court are:

• Consider and provide or refuse to sign consents for the ward, such as release of medical records;

• Revoke an existing durable power of attorney for healthcare decisions;

• Make certain the ward lives in the least restrictive setting available while serving the ward’s needs;

• See that the ward receives all medical care and treatment necessary for their health, which may include helping the ward develop certain skills;

• If the ward is an adult, to take charge of their care, education, housing, support, and maintenance;

• If the ward is a minor, to have custody and control of the child and ensure their care, education, housing, support, and maintenance; and,

• Make all necessary arrangements for the ward upon death, including their funeral, burial, or cremation.

WHAT CAN’T GUARDIANS DO?

Guardians are not allowed to prohibit the ward’s marriage or divorce or to terminate the ward’s parental rights.

Among the things guardians may not do unless they obtain approval from the court are:

• Consent to withholding or withdrawal of lifesaving medical treatment unless the ward, while competent, created a living will, advance health care directive, or other legal document expressing their wishes;

• Have control over the ward’s property, except under specific circumstances;

• Place the ward in a psychiatric facility;

• Consent to the ward’s sterilization, or to brain surgery designed to treat mental disorders, or removal of a limb or organ unless in emergency situations where doing so will preserve their health;

• Access the ward’s digital assets such as cloud storage, social media and other accounts;

• Pay the guardian or their attorney from the ward’s resources;

• Dispose of the ward’s property upon death; and,

• Consent to the ward’s adoption.

WHAT TYPES OF GUARDIANSHIPS ARE THERE?

There are five types of guardianships in Kansas:

1. Regular guardians may be appointed by the court for as long as the ward requires a guardianship.

2. A temporary guardian may be appointed if the court determines the ward may be in imminent danger.

3. A standby guardian may be appointed to step in to assume the duties of the guardian should they resign or otherwise be unable to carry out their duties.

4. A successor guardian may be appointed in advance to assume duties should the guardian be unable to at any time.

5. Co-guardians may be appointed by the court to handle guardianship duties. The court will specify if they are to act independently of one another or jointly.

WHAT IS THE APPOINTMENT PROCESS?

Someone interested in serving as guardian of a ward must file a petition with the jurisdictional court, requesting the appointment. The court will evaluate the needs of the proposed ward using licensed professionals, as well as the qualifications of the guardian nominee. If a party requests a jury trial, one will be scheduled in lieu of a bench trial.

If the judge or jury decides the proposed ward needs a guardian, one will be appointed. The guardian will sign an oath, and the court will issue letters of guardianship which testify to the guardian’s legal standing. Guardians must also complete an instructional course related to their duties and responsibilities.