Guardianship Laws

Adult Guardianship Statute: 
Right to Counsel in Statute: Initial Guardianship Proceedings: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Yes, Conditional
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

"court shall issue....an order appointing an attorney to represent the proposed ward....any appointment made by the court shall terminate upon a final determination of the petition and any appeal therefrom, unless the court continues the appointment by further order. Thereafter, any attorney may be appointed by the court if requested, in writing, by the ward, conservatee, guardian or conservator, or upon the court's own motion." K.S.A. 59-3063(a)(3). Upon the filing of a guardian’s report or a petition for substitution or termination of the guardian or a petition that capacity has been restored, the court may appoint “an attorney to represent the ward or conservatee in this matter, similarly as provided for in subsection (a)(3) of K.S.A. 59-3063, and amendments thereto." See K.S.A. §§ 59-3084(b), 59-3088(b), 59-3090(f)(1), 59-3091(f)(1).</p

Advocacy Role of Counsel Defined in Statute: 
Not stated
Professional Rules &/or Ethics Opinions: 

Identical to model rule. ʺWhen a client’s capacity to make adequately considered decisions in connection with a representation is diminished...the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.ʺ KRPC 1.14(a). ʺA client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting client's own well-being.ʺ Id. at comment 1. ʺThe fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.ʺ Id. at comment 2. ʺ[T]he lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf.ʺ Id. at Comment 3. ʺIf a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.ʺ Id. comment 4.

Other Important Info: 

During the initial guardianship hearing, a jury trial is available upon request. See K.S.A. 59-3063(a)(1). The proposed ward must be given time to meet with the court-appointed attorney at least five days prior to the initial guardianship hearing and before the examination and evaluation of the proposed ward. See K.S.A. 59-3063(a)(4). The court must review guardian’s reports according to explicit factors and based on this review, the court may set up a hearing and require the guardian to appear before the court. See K.S.A. 59-3084(a)-(b). The court may appoint an attorney to represent the ward in this matter and “may require the guardian, and may allow the ward…and other interested persons, to present evidence concerning the actions of the guardian or the recommendations of such persons.” Id.</p

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