Right to counsel

The protective services article in Kansas, titled “Reporting Abuse, Neglect or Exploitation of Certain Persons”, appears to cover only “residents” of certain facilities.  Specifically, Kan. Stat. 39-1401(a) defines a “Resident” to mean:

(1) Any resident, as defined by K.S.A. 39-923, and amendments thereto [, which states, ” ‘Resident’ means all individuals kept, cared for, treated, boarded or otherwise accommodated in any adult care home.”]; or

(2) any individual kept, cared for, treated, boarded or otherwise accommodated in a medical care facility; or

(3) any individual, kept, cared for, treated, boarded or otherwise accommodated in a state psychiatric hospital or state institution for people with intellectual disability.

Adult protective services can only be provide with the consent of the resident consent or with the consent of their “legal representative” (i.e., “an agent designated in a durable power of attorney, power of attorney or durable power of attorney for health care decisions or a court appointed guardian, conservator or trustee”). See Kan. Stat. Ann. §§ 39-1401(p) (defining “legal representative”); 39-1405 (if a determination is made that services are needed, services shall be provided if the resident consents or–in the event that the resident lacks capacity–if their legal representative consents on their behalf); 39-1410 (consent provisions applicable to the continuation of services); 39-1438 (if resident does not agree or revokes consent, services shall not be provided or continued).

However, if the resident or their legal representative do not consent and the department “has reason to believe that such a resident lacks the capacity to consent,” the department is authorized to file a petition for the appointment of a guardian or conservator. See Section 39-1405(a); 39-1408(a) (“the secretary may petition the district court for appointment of a guardian or conservator, or both, for the resident pursuant to the provisions of the act for obtaining a guardian or conservator, or both, in order to obtain such consent”).

The above language–“pursuant to the provisions of the act for obtaining a guardian or conservator”–seems to suggest that the guardianship code applies, in which case the right to counsel would attach. See Kansas, Legislation, Guardianship/Conservatorship of Adults – Protected Person.

But section 39-1408(b) states broadly, “In any proceeding in district court pursuant to provisions of this act, the district court shall appoint an attorney to represent the resident if the resident is without other legal representation.” (emphasis added).  Accordingly, this may function to provide a right to counsel in related proceedings–and not just in guardianship/conservatorship matters. For example, under section 39-1405(b), the department can seek an injunction requiring a caretaker or legal representative to provide access to a resident who has consented to services.  The court may also “appoint a new legal representative if the court deems that it is in the best interest of the resident.” Id.