Right to counsel

In April 2025, the Kansas legislature enacted HB 2359, the “uniform adult guardianship and protective proceedings jurisdiction act”, strengthening the right to counsel for respondents.

Guardianship and conservatorship

Plenary establishment

Under both the prior and current versions of the law, appointment of counsel for adult respondents is mandatory.  However, the new law makes clear that the representation is client-directed, while the former law was silent as to the attorney’s role.

Section 59-30,145(a) states: “The court shall appoint an attorney to represent the respondent, regardless of the respondent’s ability to pay.”  As to the duration of the representation, the same provision adds:  “Any appointment made by the court shall terminate after the guardian’s plan has been approved and after any appeal from the appointment of a guardian, unless the court continues the appointment by further order. Thereafter, an attorney may be appointed by the court if requested, in writing, by the adult subject to guardianship, the guardian, or upon the court’s own motion.” Id.

Paragraph (b) specifies that the role of the attorney is client-directed, stating,

An attorney representing the respondent in a proceeding for appointment of a guardian of an adult shall:

(1) Make reasonable efforts to ascertain the respondent’s wishes;
(2) advocate for the respondent’s wishes to the extent reasonably ascertainable; and
(3) if the respondent’s wishes are not reasonably ascertainable, advocate for the result that is the least restrictive in type, duration and scope, consistent with the respondent’s interests.

Kan. Stat. Ann. § 59-30,145(b).

Temporary substitute guardian or conservator

Section 59-30,125(d)(2) states, “If the individual subject to guardianship or conservatorship is not represented by an attorney, the court shall appoint an attorney under the same conditions as in K.S.A. … 59-30,145 [Appointment and role of attorney for adult], and amendments thereto.”  In turn, appointment under Section 59-30,145(a) is mandatory regardless of indigency, as discussed above.

Termination, modification, removal, and appointment of successor

The law appears to be silent as to the procedures for such matters and any associated right to counsel.  Thus, we have classified the right to counsel for adults as qualified, since it only clearly applies in plenary establishment and temporary substitute guardian or conservator matters.

For the guardian

Although prior law permitted the court to appoint counsel for a guardian in matters related to modification of the guardian’s powers, Kan. Stat. Ann. § 59-3075(a)(1), the new law is silent as to whether the court may appoint counsel for the guardian in any matter.