KS
Kansas House Bill HB2250

Kansas 2023-2024 Regular Session

Kansas House Bill HB2250 Compare Versions

Only one version of the bill is available at this time.
OldNewDifferences
11 Session of 2023
22 HOUSE BILL No. 2250
33 By Committee on Judiciary
44 2-1
55 AN ACT enacting the supported decision-making agreements act;
66 providing requirements for decision-making assistance for adults;
77 amending K.S.A. 2022 Supp. 21-5417 and repealing the existing
88 section.
99 Be it enacted by the Legislature of the State of Kansas:
1010 New Section 1. Sections 1 through 9, and amendments thereto, shall
1111 be known and may be cited as the supported decision-making agreements
1212 act.
1313 New Sec. 2. As used in the supported decision-making agreements
1414 act, unless the context indicates otherwise:
1515 (a) "Adult" means an individual who is 18 years of age or older.
1616 (b) "Affairs" means decisions related to the following affairs of a
1717 principal:
1818 (1) Monitoring health, obtaining, scheduling, implementing and
1919 coordinating health and support services, understanding healthcare
2020 information and options, providing for care and comfort, and other
2121 healthcare and personal matters in which the principal makes decisions
2222 about the principal's healthcare;
2323 (2) managing income and assets and the use of income and assets for
2424 clothing, support, care, comfort, education, shelter and payment of other
2525 liabilities of the principal;
2626 (3) handling personal, healthcare and financial matters that arise in
2727 the course of daily living;
2828 (4) monitoring information about the principal's support services,
2929 including necessary or recommended future support services;
3030 (5) living arrangements, including where and with whom the
3131 principal wants to live; and
3232 (6) working arrangements, including where the principal wants to
3333 work.
3434 (c) "Capacity" means the ability to understand and appreciate the
3535 nature and consequences of a decision and the ability to reach and
3636 communicate an informed decision.
3737 (d) "Conservator" means a person appointed a conservator under the
3838 act for obtaining a guardian or a conservator, or both, K.S.A. 59-3050 et
3939 seq., and amendments thereto, or a similar law of another state.
4040 1
4141 2
4242 3
4343 4
4444 5
4545 6
4646 7
4747 8
4848 9
4949 10
5050 11
5151 12
5252 13
5353 14
5454 15
5555 16
5656 17
5757 18
5858 19
5959 20
6060 21
6161 22
6262 23
6363 24
6464 25
6565 26
6666 27
6767 28
6868 29
6969 30
7070 31
7171 32
7272 33
7373 34
7474 35
7575 36 HB 2250 2
7676 (e) "Decision" means a decision relating to the affairs of a principal.
7777 (f) "Decision-making assistance" means the decision-making
7878 assistance described in section 7, and amendments thereto.
7979 (g) "Good faith" means honesty in fact and the observance of
8080 reasonable standards of fair dealing.
8181 (h) "Guardian" means a person appointed a guardian under the act for
8282 obtaining a guardian or a conservator, or both, K.S.A. 59-3050 et seq., and
8383 amendments thereto, or a similar law of another state.
8484 (i) "Immediate family member" means a spouse, child, sibling,
8585 parent, grandparent, grandchild, stepparent, stepchild or stepsibling.
8686 (j) "Person" means an individual, healthcare institution, healthcare
8787 provider, corporation, partnership, limited liability company, association,
8888 joint venture, government, governmental subdivision, governmental
8989 agency, governmental instrumentality, public corporation, or another legal
9090 or commercial entity.
9191 (k) "Principal" means an adult who enters into a supported decision-
9292 making agreement under the supported decision-making agreements act to
9393 receive decision-making assistance.
9494 (l) "Support services" means the following services:
9595 (1) House repair, home cleaning, laundry, shopping and providing
9696 meals;
9797 (2) transportation, accompanying a principal, and facilitating a
9898 principal's written, oral and electronic communication;
9999 (3) nurse visitations and attendant care;
100100 (4) provision of healthcare;
101101 (5) physical and psychosocial assessments;
102102 (6) financial assessments and advice on banking, taxes, loans,
103103 investments and management of real property;
104104 (7) legal assessments and advice;
105105 (8) education and educational assessments and advice;
106106 (9) assistance with bathing, dressing, eating, range of motion,
107107 toileting, transferring, ambulation and other direct assistance with the
108108 activities of daily living;
109109 (10) care planning; and
110110 (11) services that assist in maintaining the independence of a
111111 principal.
112112 (m) "Supported decision-making agreement" means an agreement
113113 authorized under section 3, and amendments thereto.
114114 (n) "Supporter" means an adult who enters into a supported decision-
115115 making agreement under the supported decision-making agreements act
116116 and provides decision-making assistance.
117117 New Sec. 3. (a) Except as provided in subsections (b) and (c), an
118118 adult may enter into a supported decision-making agreement. A supported
119119 1
120120 2
121121 3
122122 4
123123 5
124124 6
125125 7
126126 8
127127 9
128128 10
129129 11
130130 12
131131 13
132132 14
133133 15
134134 16
135135 17
136136 18
137137 19
138138 20
139139 21
140140 22
141141 23
142142 24
143143 25
144144 26
145145 27
146146 28
147147 29
148148 30
149149 31
150150 32
151151 33
152152 34
153153 35
154154 36
155155 37
156156 38
157157 39
158158 40
159159 41
160160 42
161161 43 HB 2250 3
162162 decision-making agreement allows an adult to receive decision-making
163163 assistance with the adult's affairs from one or more other adults.
164164 (b) The adult wanting to receive decision-making assistance shall not
165165 enter into a supported decision-making agreement unless the adult:
166166 (1) Enters into the agreement voluntarily and without coercion or
167167 undue influence; and
168168 (2) understands the nature and effect of the agreement.
169169 (c) An adult shall not enter into a supported decision-making
170170 agreement if the agreement encroaches on the authority of a guardian or
171171 conservator of the adult, unless the guardian or conservator approves in
172172 writing the adult entering into the supported decision-making agreement.
173173 (d) A supporter shall be an adult but shall not be a person against
174174 whom a protective order or restraining order has been entered by a court
175175 on request of or on behalf of the principal.
176176 New Sec. 4. (a) A supported decision-making agreement shall:
177177 (1) Name one or more adults to provide a principal with decision-
178178 making assistance;
179179 (2) describe the decision-making assistance that each supporter may
180180 provide the principal; and
181181 (3) contain a notice to third parties that summarizes the rights and
182182 obligations of the supporter under the supported decision-making
183183 agreements act and expressly identifies section 1 et seq., and amendments
184184 thereto.
185185 (b) A supported decision-making agreement may:
186186 (1) Name an alternate supporter to act in the place of a supporter and
187187 the circumstances under which the alternate supporter may act;
188188 (2) authorize a supporter to share information with another supporter
189189 named in the agreement, including an alternate supporter.
190190 (c) A supported decision-making agreement shall contain a separate
191191 declaration by each supporter, including an alternate supporter, that states
192192 the supporter's relationship with the principal, states the willingness of the
193193 supporter to act as a supporter for the principal and indicates that the
194194 supporter acknowledges the duties of a supporter under the supported
195195 decision-making agreements act. Each declaration shall be signed by the
196196 supporter making the declaration.
197197 (d) Nothing in this act shall:
198198 (1) Require a person to have a written supported decision-making
199199 agreement in order to engage in formal or informal supported decision-
200200 making; or
201201 (2) prevent a person from providing evidence that a supported
202202 decision-making agreement was used as an alternative to guardianship
203203 during the course of a guardianship proceeding.
204204 New Sec. 5. (a) A supported decision-making agreement shall be
205205 1
206206 2
207207 3
208208 4
209209 5
210210 6
211211 7
212212 8
213213 9
214214 10
215215 11
216216 12
217217 13
218218 14
219219 15
220220 16
221221 17
222222 18
223223 19
224224 20
225225 21
226226 22
227227 23
228228 24
229229 25
230230 26
231231 27
232232 28
233233 29
234234 30
235235 31
236236 32
237237 33
238238 34
239239 35
240240 36
241241 37
242242 38
243243 39
244244 40
245245 41
246246 42
247247 43 HB 2250 4
248248 valid if:
249249 (1) The agreement is dated and in writing;
250250 (2) the agreement satisfies the requirements of sections 3 and 4, and
251251 amendments thereto;
252252 (3) the agreement has been signed by the principal and each named
253253 supporter, including any alternate supporter, and the:
254254 (A) Signing takes place in the presence of two witnesses who also
255255 sign the agreement; or
256256 (B) signatures of the principal and each named supporter, including
257257 any alternate supporter, are notarized; and
258258 (4) when the principal has a guardian or conservator, the principal has
259259 notified the guardian or conservator of the agreement.
260260 (b) (1) Each witness under subsection (a) shall be an adult who
261261 understands the means of communication used by the principal, except, if
262262 there is an individual who understands the principal's means of
263263 communication present to assist during the execution of the supported
264264 decision-making agreement, the witnesses are not required to understand
265265 the means of communication used by the principal.
266266 (2) A witness under subsection (a) shall not be a supporter named in
267267 the supported decision-making agreement or an employee or agent of a
268268 supporter named in the supported decision-making agreement.
269269 (c) A supported decision-making agreement shall be substantially in
270270 compliance with the form set forth by the judicial council. The judicial
271271 council shall develop a form for use under the supported decision-making
272272 agreements act.
273273 New Sec. 6. (a) A supported decision-making agreement may indicate
274274 the date it becomes effective and its duration. If the agreement does not
275275 indicate the date it becomes effective, the agreement becomes effective
276276 immediately. If the agreement does not indicate its duration, the agreement
277277 remains effective until terminated under this section.
278278 (b) A principal may, at any time, terminate all or a portion of a
279279 supported decision-making agreement. A supporter may, at any time,
280280 terminate all or a portion of the supporter's obligations under a supported
281281 decision-making agreement, including the declaration of support described
282282 in section 4, and amendments thereto.
283283 (c) A termination under this section shall be dated and in writing. The
284284 termination shall be signed by the terminating party.
285285 (d) A principal or supporter terminating all or a portion of a supported
286286 decision-making agreement shall notify the other party to the agreement
287287 that the agreement has been terminated. Notice shall be given in person, by
288288 certified mail or by electronic means.
289289 (e) If a portion of a supported decision-making agreement is
290290 terminated under this section and the termination is consistent with this
291291 1
292292 2
293293 3
294294 4
295295 5
296296 6
297297 7
298298 8
299299 9
300300 10
301301 11
302302 12
303303 13
304304 14
305305 15
306306 16
307307 17
308308 18
309309 19
310310 20
311311 21
312312 22
313313 23
314314 24
315315 25
316316 26
317317 27
318318 28
319319 29
320320 30
321321 31
322322 32
323323 33
324324 34
325325 35
326326 36
327327 37
328328 38
329329 39
330330 40
331331 41
332332 42
333333 43 HB 2250 5
334334 section, the remainder of the agreement remains in effect.
335335 New Sec. 7. (a) A supporter shall act with the care, competence and
336336 diligence ordinarily exercised by individuals in similar circumstances.
337337 (b) Except as limited by a supported decision-making agreement, a
338338 supporter may provide to a principal the following decision-making
339339 assistance about the principal's affairs:
340340 (1) Assisting with making decisions, communicating decisions, and
341341 understanding information about, options for, the responsibilities of, and
342342 the consequences of decisions;
343343 (2) accessing, obtaining, and understanding information that is
344344 relevant to decisions necessary for the principal to manage the principal's
345345 affairs, including medical, psychological, financial and educational
346346 information, medical treatment records and other records;
347347 (3) ascertaining the wishes and decisions of the principal, assisting in
348348 communicating those wishes and decisions to other persons, and
349349 advocating to ensure the implementation of the principal's wishes and
350350 decisions; and
351351 (4) accompanying the principal and participating in discussions with
352352 other persons when the principal is making decisions or attempting to
353353 obtain information for decisions.
354354 (c) Under subsection (b), a supporter may use the principal's dated
355355 consent to assist the principal in obtaining protected health information
356356 under the health insurance portability and accountability act of 1996,
357357 public law 104-191, or educational records under the family educational
358358 rights and privacy act of 1974, 20 U.S.C. § 1232g.
359359 (d) If a supporter uses financial information obtained pursuant to this
360360 act, a financial institution may consider that person to have obtained
361361 access authority pursuant to the electronic fund transfer act, 15 U.S.C. §
362362 1693 et seq. and regulation E, 12 C.F.R. § 1005. Nothing in this section
363363 shall be construed to relieve a supporter who misrepresents the access
364364 authority from criminal liability.
365365 (e) A supporter shall not:
366366 (1) Exert undue influence on the principal;
367367 (2) make decisions for or on behalf of the principal;
368368 (3) sign for the principal or provide an electronic signature of the
369369 principal to a third party;
370370 (4) obtain, without the consent of the principal, information that is not
371371 reasonably related to matters with which the supporter may assist the
372372 principal under the supported decision-making agreement; or
373373 (5) use, without the consent of the principal, information acquired for
374374 a purpose authorized by the supported decision-making agreement for a
375375 purpose other than assisting the principal to make a decision under the
376376 supported decision-making agreement.
377377 1
378378 2
379379 3
380380 4
381381 5
382382 6
383383 7
384384 8
385385 9
386386 10
387387 11
388388 12
389389 13
390390 14
391391 15
392392 16
393393 17
394394 18
395395 19
396396 20
397397 21
398398 22
399399 23
400400 24
401401 25
402402 26
403403 27
404404 28
405405 29
406406 30
407407 31
408408 32
409409 33
410410 34
411411 35
412412 36
413413 37
414414 38
415415 39
416416 40
417417 41
418418 42
419419 43 HB 2250 6
420420 (f) A supporter who collects information on behalf of the principal
421421 under the supported decision-making agreement shall:
422422 (1) Keep the information confidential;
423423 (2) not use the information for a use that is not authorized by the
424424 principal;
425425 (3) protect the information from unauthorized access, use or
426426 disclosure; and
427427 (4) dispose of the information properly when appropriate.
428428 (g) A supporter acting in good faith in accordance with the provisions
429429 of this act shall not be liable to either the principal or any third party for
430430 any injuries, damages or other losses arising from a decision made by a
431431 principal in which the supporter assisted the principal or was otherwise
432432 involved.
433433 New Sec. 8. (a) A person shall recognize a decision or request made
434434 or communicated with the decision-making assistance of a supporter under
435435 the supported decision-making agreements act as the decision or request of
436436 the principal for the purposes of a provision of law, and the principal or
437437 supporter may enforce the decision or request in law or equity on the same
438438 basis as a decision or request of the principal.
439439 (b) A person who, in good faith, either acts in reliance on an
440440 authorization in a supported decision-making agreement or declines to
441441 honor an authorization in a supported decision-making agreement is not
442442 subject to civil or criminal liability or to discipline for unprofessional
443443 conduct for:
444444 (1) Complying with an authorization in a supported decision-making
445445 agreement, if the person is complying based on an assumption that the
446446 underlying supported decision-making agreement was valid when made
447447 and has not been terminated;
448448 (2) declining to comply with an authorization in a supported decision-
449449 making agreement if the person is declining based on actual knowledge
450450 that the supported decision-making agreement is invalid or has been
451451 terminated; or
452452 (3) declining to comply with an authorization related to healthcare in
453453 a supported decision-making agreement, if the person is declining because
454454 the action proposed to be taken under the supported decision-making
455455 agreement is contrary to the good faith medical judgment of the person or
456456 to a written policy of a healthcare institution that is based on reasons of
457457 conscience.
458458 New Sec. 9. (a) An adult who enters into a supported decision-
459459 making agreement may act without the decision-making assistance of the
460460 supporter.
461461 (b) The execution of a supported decision-making agreement shall
462462 not constitute evidence that the principal does not have capacity.
463463 1
464464 2
465465 3
466466 4
467467 5
468468 6
469469 7
470470 8
471471 9
472472 10
473473 11
474474 12
475475 13
476476 14
477477 15
478478 16
479479 17
480480 18
481481 19
482482 20
483483 21
484484 22
485485 23
486486 24
487487 25
488488 26
489489 27
490490 28
491491 29
492492 30
493493 31
494494 32
495495 33
496496 34
497497 35
498498 36
499499 37
500500 38
501501 39
502502 40
503503 41
504504 42
505505 43 HB 2250 7
506506 (c) In the application of the supported decision-making agreements
507507 act:
508508 (1) A decision that a principal is incapable of managing the principal's
509509 affairs may not be based on the manner in which the principal
510510 communicates with others; and
511511 (2) a principal is considered to have capacity even if the capacity is
512512 achieved by the principal receiving decision-making assistance, unless a
513513 court has determined that the principal does not have capacity.
514514 Sec. 10. K.S.A. 2022 Supp. 21-5417 is hereby amended to read as
515515 follows: 21-5417. (a) Mistreatment of a dependent adult or an elder person
516516 is knowingly committing one or more of the following acts:
517517 (1) Infliction of physical injury, unreasonable confinement or
518518 unreasonable punishment upon a dependent adult or an elder person;
519519 (2) taking the personal property or financial resources of a dependent
520520 adult or an elder person for the benefit of the defendant or another person
521521 by taking control, title, use or management of the personal property or
522522 financial resources of a dependent adult or an elder person through:
523523 (A) Undue influence, coercion, harassment, duress, deception, false
524524 representation, false pretense or without adequate consideration to such
525525 dependent adult or elder person;
526526 (B) a violation of the Kansas power of attorney act, K.S.A. 58-650 et
527527 seq., and amendments thereto;
528528 (C) a violation of the Kansas uniform trust code, K.S.A. 58a-101 et
529529 seq., and amendments thereto; or
530530 (D) a violation of the act for obtaining a guardian or a conservator, or
531531 both, K.S.A. 59-3050 et seq., and amendments thereto; or
532532 (E) a violation of the supported decision-making act, section 1 et
533533 seq., and amendments thereto; or
534534 (3) omission or deprivation of treatment, goods or services that are
535535 necessary to maintain physical or mental health of such dependent adult or
536536 elder person.
537537 (b) Mistreatment of a dependent adult or an elder person as defined
538538 in:
539539 (1) (A) Subsection (a)(1) is a severity level 5, person felony, except as
540540 provided in subsection (b)(1)(B);
541541 (B) subsection (a)(1) is a severity level 2, person felony, when the
542542 victim is a dependent adult who is a resident of an adult care home, as
543543 described in subsection (e)(2)(A), during the commission of the offense;
544544 (2) subsection (a)(2) if the aggregate amount of the value of the
545545 personal property or financial resources is:
546546 (A) $1,000,000 or more is a severity level 2, person felony;
547547 (B) at least $250,000 but less than $1,000,000 is a severity level 3,
548548 person felony;
549549 1
550550 2
551551 3
552552 4
553553 5
554554 6
555555 7
556556 8
557557 9
558558 10
559559 11
560560 12
561561 13
562562 14
563563 15
564564 16
565565 17
566566 18
567567 19
568568 20
569569 21
570570 22
571571 23
572572 24
573573 25
574574 26
575575 27
576576 28
577577 29
578578 30
579579 31
580580 32
581581 33
582582 34
583583 35
584584 36
585585 37
586586 38
587587 39
588588 40
589589 41
590590 42
591591 43 HB 2250 8
592592 (C) at least $100,000 but less than $250,000 is a severity level 4,
593593 person felony;
594594 (D) at least $25,000 but less than $100,000 is a severity level 5,
595595 person felony;
596596 (E) at least $1,500 but less than $25,000 is a severity level 7, person
597597 felony;
598598 (F) less than $1,500 is a class A person misdemeanor, except as
599599 provided in subsection (b)(2)(G); and
600600 (G) less than $1,500 and committed by a person who has, within five
601601 years immediately preceding commission of the crime, been convicted of a
602602 violation of this section two or more times is a severity level 7, person
603603 felony; and
604604 (3) (A) subsection (a)(3) is a severity level 8, person felony, except as
605605 provided in subsection (b)(3)(B); and
606606 (B) subsection (a)(3) is a severity level 5, person felony, when the
607607 victim is a dependent adult who is a resident of an adult care home, as
608608 described in subsection (e)(2)(A), during the commission of the offense.
609609 (c) It shall be an affirmative defense to any prosecution for
610610 mistreatment of a dependent adult or an elder person as described in
611611 subsection (a)(2) that:
612612 (1) The personal property or financial resources were given as a gift
613613 consistent with a pattern of gift giving to the person that existed before the
614614 dependent adult or elder person became vulnerable;
615615 (2) the personal property or financial resources were given as a gift
616616 consistent with a pattern of gift giving to a class of individuals that existed
617617 before the dependent adult or elder person became vulnerable;
618618 (3) the personal property or financial resources were conferred as a
619619 gift by the dependent adult or elder person to the benefit of a person or
620620 class of persons, and such gift was reasonable under the circumstances; or
621621 (4) a court approved the transaction before the transaction occurred.
622622 (d) No dependent adult or elder person is considered to be mistreated
623623 under subsection (a)(1) or (a)(3) for the sole reason that such dependent
624624 adult or elder person relies upon or is being furnished treatment by
625625 spiritual means through prayer in lieu of medical treatment in accordance
626626 with the tenets and practices of a recognized church or religious
627627 denomination of which such dependent adult or elder person is a member
628628 or adherent.
629629 (e) As used in this section:
630630 (1) "Adequate consideration" means the personal property or
631631 financial resources were given to the person as payment for bona fide
632632 goods or services provided by such person and the payment was at a rate
633633 customary for similar goods or services in the community that the
634634 dependent adult or elder person resided in at the time of the transaction.
635635 1
636636 2
637637 3
638638 4
639639 5
640640 6
641641 7
642642 8
643643 9
644644 10
645645 11
646646 12
647647 13
648648 14
649649 15
650650 16
651651 17
652652 18
653653 19
654654 20
655655 21
656656 22
657657 23
658658 24
659659 25
660660 26
661661 27
662662 28
663663 29
664664 30
665665 31
666666 32
667667 33
668668 34
669669 35
670670 36
671671 37
672672 38
673673 39
674674 40
675675 41
676676 42
677677 43 HB 2250 9
678678 (2) "Dependent adult" means an individual 18 years of age or older
679679 who is unable to protect the individual's own interest. Such term shall
680680 include "Dependent adult" includes, but is not limited to, any:
681681 (A) Resident of an adult care home including, but not limited to,
682682 those facilities defined by K.S.A. 39-923, and amendments thereto;
683683 (B) adult cared for in a private residence;
684684 (C) individual kept, cared for, treated, boarded, confined or otherwise
685685 accommodated in a medical care facility;
686686 (D) individual with intellectual disability or a developmental
687687 disability receiving services through a community facility for people with
688688 intellectual disability or residential facility licensed under K.S.A. 39-2001
689689 et seq., and amendments thereto;
690690 (E) individual with a developmental disability receiving services
691691 provided by a community service provider as provided in the
692692 developmental disability reform act; or
693693 (F) individual kept, cared for, treated, boarded, confined or otherwise
694694 accommodated in a state psychiatric hospital or state institution for people
695695 with intellectual disability.
696696 (3) "Elder person" means a person 60 years of age or older.
697697 (f) An offender who violates the provisions of this section may also
698698 be prosecuted for, convicted of, and punished for any other offense in
699699 article 54, 55, 56 or 58 of chapter 21 of the Kansas Statutes Annotated, or
700700 K.S.A. 2022 Supp. 21-6418, and amendments thereto.
701701 Sec. 11. K.S.A. 2022 Supp. 21-5417 is hereby repealed.
702702 Sec. 12. This act shall take effect and be in force from and after its
703703 publication in the statute book.
704704 1
705705 2
706706 3
707707 4
708708 5
709709 6
710710 7
711711 8
712712 9
713713 10
714714 11
715715 12
716716 13
717717 14
718718 15
719719 16
720720 17
721721 18
722722 19
723723 20
724724 21
725725 22
726726 23
727727 24
728728 25
729729 26