§ 59-3067 — Trial; procedure; appointment of guardian or conservator; denial

(a) The trial upon a petition filed pursuant to K.S.A. 59-3058, 59-3059, 59-3060, 59-3061 or 59-3062, and amendments thereto, shall be held at the time and place specified in the court's order entered pursuant to K.S.A. 59-3063, and amendments thereto, unless an order of advancement, continuance or change of place has been issued pursuant to K.S.A. 59-3065, and amendments thereto, and may be consolidated with the trial provided for in the care and treatment act for mentally ill persons, K.S.A. 59-2945 et seq., and amendments thereto, or the care and treatment act for persons with an alcohol or substance abuse problem, K.S.A. 59-29b45, and amendments thereto, if the petition also incorporates the allegations required by, and is filed in compliance with, the provisions of either of those acts.
(b) If the petition alleges that the proposed ward or proposed conservatee is an adult with an impairment in need of a guardian or conservator, or both, the trial may be held to a jury if, at least four days prior to the date of the trial, a written demand for jury trial is filed with the court by the proposed ward or proposed conservatee. In all other cases, the trial shall be held to the court.
(c) The jury, if one is demanded, shall consist of six persons and shall be selected as provided by law. Notwithstanding any provision of K.S.A. 43-166, and amendments thereto, to the contrary, a panel of prospective jurors may be assembled by the clerk upon less than 20 days' notice in this circumstance. From this panel, 12 qualified jurors who have been passed for cause shall be empaneled. Prior service as a juror in any other court shall not exempt, for that reason alone, any person from jury service hereunder. From the panel so obtained, the proposed ward or proposed conservatee, or the attorney for the proposed ward or proposed conservatee, shall strike one name; then the petitioner, or the petitioner's attorney, shall strike one name; and so on alternatively until each has stricken three names so as to reach the jury of six persons. During this process, if either party neglects or refuses to aid in striking the names, the court shall strike a name on behalf of such party.
(d) The petitioner and the proposed ward or proposed conservatee shall each be afforded an opportunity to appear at the trial, to testify and to present and cross-examine witnesses. If the trial has been consolidated with a trial being held pursuant to either the care and treatment act for mentally ill persons or the care and treatment act for persons with an alcohol or substance abuse problem persons not necessary for the conduct of the proceedings may be excluded as provided for in those acts. The trial shall be conducted in as informal a manner as may be consistent with orderly procedure. The court shall have the authority to receive all relevant and material evidence which may be offered, including the testimony or written report, findings or recommendations of any professional or other person who has examined or evaluated the proposed ward or proposed conservatee and the testimony and written findings and recommendations of the secretary for children and families or any other person appointed by the court to conduct an investigation pursuant to K.S.A. 59-3065, and amendments thereto. Such evidence shall not be privileged for the purpose of this trial.
(e) Upon completion of the trial:
(1) If the court finds by clear and convincing evidence that the proposed ward or proposed conservatee is an adult with an impairment in need of a guardian or a conservator, or both, or a minor in need of a guardian or a conservator, or both, or a minor with an impairment in need of a guardian or a conservator, or both, or a person who has been previously adjudged as impaired in another state, the court, pursuant to K.S.A. 59-3068, and amendments thereto, shall appoint a qualified and suitable individual or corporation as the guardian or conservator, or both, and shall specify what duties, responsibilities, powers and authorities as provided for in K.S.A. 59-3075, 59-3076, 59-3077, 59-3078 or 59-3079, and amendments thereto, the guardian or conservator shall have. If the court appoints co-guardians or co-conservators, or both, the court shall specify whether such co-guardians or co-conservators, or both, shall have the authority to act independently, to act only in concert, or under what circumstances or with regard to what matter they may act independently and when they may act only in concert.
(2) If a jury has been demanded in the case of an adult and the jury finds by clear and convincing evidence that the proposed ward or proposed conservatee is unable to meet essential needs for physical health, safety or welfare, or is unable to manage such person's estate, then the court shall determine if the proposed ward or proposed conservatee is in need of a guardian or a conservator, or both, and if so, the court, pursuant to K.S.A. 59-3068, and amendments thereto, shall appoint a qualified and suitable individual or corporation as the guardian or conservator, or both, and shall specify what duties, responsibilities, powers and authorities as provided for in K.S.A. 59-3075, 59-3076, 59-3077, 59-3078 or 59-3079, and amendments thereto, the guardian or conservator shall have. If the court appoints co-guardians or co-conservators, or both, the court shall specify whether such co-guardians or co-conservators, or both, shall have the authority to act independently or whether they shall be required to act only in concert.
(3) If the court finds by clear and convincing evidence that the proposed conservatee is a person in need of an ancillary conservator, the court, pursuant to K.S.A. 59-3068, and amendments thereto, shall appoint a qualified and suitable individual or corporation as the ancillary conservator, and shall specify what duties, responsibilities, powers and authorities as provided for in K.S.A. 59-3078 or 59-3079, and amendments thereto, the ancillary conservator shall have. If the court appoints co-ancillary conservators, the court shall specify whether such co-ancillary conservators shall have the authority to act independently or whether they shall be required to act only in concert.
(f) If the court does not find by clear and convincing evidence that the proposed ward or proposed conservatee is an adult with an impairment in need of a guardian or a conservator, or both, or a minor in need of a guardian or a conservator, or both, or a minor with an impairment in need of a guardian or a conservator, or both, or a person who has been previously adjudged as impaired in another state, or a person in need of an ancillary conservator, or does not find that the proposed ward or proposed conservatee is in need of a guardian or a conservator, even though the jury has determined that the proposed ward or proposed conservatee is unable to meet essential needs for physical health, safety or welfare, or is unable to manage such person's estate, because other appropriate alternatives exist and are sufficient to meet those needs of the proposed ward or proposed conservatee, then the court shall deny the requested appointments.

Legislative History

L. 2002, ch. 114, § 18; L. 2014, ch. 115, § 226; July 1.