DCR 3.607 Guardianships and Conservatorships
A. PETITION: In addition to the content of the petition prescribed by the statute [59-3059(b)] the petition shall include a statement of the reason for the need of a guardianship.
B. CONSENT OF PARENTS REQUIRED; EXCEPTIONS:
Consent of both natural parents is required in order to establish a guardianship of a minor. Exceptions are as follows:
1. Where the parent or parents are deceased;
2. Where the parental rights have been terminated by a separate court proceeding;
3. Where the child is the product of rape (no consent of the father shall be required);
4. Where lawful notice has been given to the parent and such parent then fails to appear at the time scheduled for hearing or otherwise answer;
5. Where, upon proper hearing, petitioner is able to establish, by clear and convincing evidence, that the nonconsenting parent is an unfit parent.
C. NOTICE REQUIREMENTS:
The duty to provide notice shall be on the petitioner. Notice shall be given to the lawful custodian and to the parents (except where written consent has been obtained and filed in the record). Where the identity or whereabouts of a parent is unknown the Court may require that notice be given by publication.
D. HEARINGS; REQUIRED APPEARANCES:
Minors 14 years of age and older shall appear in person at the hearing on the petition for appointment of a guardian and/or conservator. In all other cases, the proposed ward and/or conservatee shall appear in person at the hearing on the petition unless such appearance has been excused, in advance, by the Court.
In all cases the nominee(s) for guardian and/or conservator shall appear personally before the Court at the time of the scheduled hearing. The petitioner shall have the duty to present evidence sufficient to show the nominee(s) to be qualified to serve in the position for which he or she has been nominated.
E. GUARDIANSHIP; QUALIFICATION TO SERVE
EFFECT OF PRIOR ABUSE CONFIRMATION: Any person whose name appears on (Child Abuse registry) such a report as having been confirmed for abuse shall be presumed to be ineligible to serve as guardian of a minor.
Every petitioner seeking to establish a guardianship for a minor shall have the duty to obtain and file with the court, prior to the hearing on the petition, a written report from (Child Abuse registry) with respect to the nominee(s).
EFFECT OF CRIMINAL RECORD
Any person who has a record of having committed, within the past 10 years, any crime identified as a felony or any crime of violence or of dishonesty shall be presumed to be ineligible to serve as guardian or other position of trust. Such presumption shall not be overcome by proof that the nominee is a relative of the proposed ward and or conservatee.
F. BOND; SURETY REQUIRED; USE OF "ORDER FREEZING ASSETS"
Bond with sufficient sureties shall be required in all conservatorships (and curatorships). "Personal bonds" shall not be accepted except where supported by sufficient non-exempt property with proof of same filed as part of the record.
The amount of the bond shall be set at 125% of the annual income plus the value of all the assets, not including real property, of the conservatorship estate. The amount of the bond requirement may be reduced by reducing the amount of the assets at risk by use of an "Order Freezing Assets(")
USE OF "ORDER FREEZING ASSETS". Any asset otherwise subject to the bond requirement may be deposited in any federally insured banking institution or federally regulated brokerage firm authorized and doing business in Kansas and approval of the Court subject to an "Order Freezing Assets". The amount of the bond to be required shall then be calculated excluding the amount subject to the "Order Freezing Assets". No such order shall be effective unless the institution, by a qualified officer, agrees in writing to be subject to such order of the court. Release of all or part of assets subject to an Order Freezing Assets shall only be made upon proper application to and approval by the Court. The "ORDER FREEZING ASSETS" shall be filed on Probate Court Form F 3.607(F) (PDF).
G. CUSTODY OF MINORS - LIMITATION ON CHANGES
No guardian, having been given custody of a minor, may thereafter return the minor to his or her parents or to any other person without first obtaining written authorization from the Court to do so. Violation of this provision shall be regarded as contempt of court and punished accordingly.
H. MOVE OUT OF STATE WITHOUT COURT CONSENT PROHIBITED
No guardian shall permit or cause the ward under his or her care to be moved to any other state or foreign country without first having obtained the approval of the supervising court.
Violation of this provision shall be grounds for immediate termination of authority of the guardian and such other action as necessary to protect the rights of the ward/conservatee.
I. "REPORT OF GUARDIAN" OR "ACCOUNTING" REQUIRED FORM; DATE DUE
The Report of Guardian shall be filed on an approved court form [F3.607(I)].
The "REPORT ON THE CONDITION OF THE GUARDIAN'S WARD" shall be filed on Probate Court Form F 3.607(I)(a). The "ANNUAL ACCOUNTING" shall be filed on Probate Court Form F 3.607(I)(b). The due date shall be 30 days after the end of the calendar year or 30 days after the end of the 12-month period immediately following and including the month in which the case is filed. The period shall be considered to have started on the first day of the month in which the case is filed and the reporting period shall be for the 12-month period following that date and like periods thereafter. The Order establishing the guardianship or conservatorship shall include a statement of the due date of the Report or Accounting.
J. GUARDIANSHIPS/CONSERVATORSHIPS OF MINORS - TERMINATION
Upon a ward reaching his or her 18th birthday the Clerk shall enter in the record that the guardianship/conservatorship is terminated and shall send notice to the guardian/conservator of the termination. The case shall then be removed from active docket with no other action required by the parties or the court.
Letters of Guardianship (for Minors) shall bear the date of birth of the ward and shall also bear a stamp as follows: "This document is not valid after the 18th birthday of the ward. "
Upon a minor who is a conservatee reaching his or her 18th birthday, the Clerk shall enter in the record that the conservatorship is terminated and shall notify the conservator of such fact and that a final accounting is due within 30 days. Discharge shall not occur until the Court has approved the final accounting or where final accounting is waived, in writing, by the conservatee and accepted by the Court.
A written order is required to show the final discharge.
K. GUARDIANSHIP/CONSERVATORSHIP CASES - RECORDS, LIMITATION OF ACCESS
No medical examination reports or other medical information used in establishing or maintaining a guardianship/conservatorship or curatorship case shall be made available to anyone without a written order of the supervising court. Provided, such prohibition shall not apply to: (1) the attorney representing the ward conservatee, (2) the appointed guardian or conservator, or (3) the attorney representing the petitioner in establishing the guardianship/conservatorship or appointing any successor.
The medical information shall be maintained in an envelope in the file and may not be checked out with the file.
L. ISSUANCE OF SUBPOENAS - LIMITATION
The Clerk shall not issue a subpoena in any guardianship/ conservatorship/curatorship case except where there is pending a hearing set by the Court for which the subpoena is intended to produce the appearance of a witness or production of records for such hearing.
M. CURATORSHIPS - ACCOUNTING PROCEDURE
Approval of accountings will not be considered unless same has been first submitted to and approved by the Veterans Administration Regional Office or such requirement is waived by that agency.
Inventory of all real and personal property shall be filed on the form "INVENTORY & VALUATION" Probate Court Form F 3.607(I)(a).
Guardianship and Conservatorship forms are, generally, those provided by Kansas Judicial Council, and the same are adopted by reference.
Adopted: July 16, 2008
(Court Appointed Attorney/Guardian Ad Litem Fees)
1. In Probate, Juvenile and Domestic Relations (including paternity) proceedings, except as noted*, counsel appointed as attorney or guardian ad litem will be paid at the rate of $300 per appointment. This rule contemplates the standard appointment fee to include up to six hours of time and all expenses. In extraordinary cases where it is necessary for counsel to expend more than 6 hours or where extraordinary expenses are incurred, payment will be approved at the hourly rate of $80 per hour for documented time exceeding 6 hours.
[This amount is based on a presumption that the "average" amount of time is 3.75 hours in a case and that $80 per hour is a reasonable allowance considering the general nature of the work and the budget constraints being met by the courts. No time or expense records will need to be filed for cases falling within this applicable range.]
2. This standard fee rate shall be applicable in all cases without regard to whether payment is to be made from private or public funds.
3. All orders submitted to the Court for payment of attorney fees from public funds shall also make provision for reimbursement of those by assessment against one or more of the parties to the case as appropriate or for waiver of such reimbursement when that is appropriate.
*This schedule shall not apply to those cases designated generally as "care and treatment cases" where the presently published schedule shall remain in effect. Likewise, this schedule of fees shall not affect any fee contract for juvenile cases.
Adopted: February 18, 1998
Revised: September 9, 2007