Session of 2023
HOUSE BILL No. 2250
By Committee on Judiciary
2-1
AN ACT enacting the supported decision-making agreements act;
providing requirements for decision-making assistance for adults;
amending K.S.A. 2022 Supp. 21-5417 and repealing the existing
section.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. Sections 1 through 9, and amendments thereto, shall
be known and may be cited as the supported decision-making agreements
act.
New Sec. 2. As used in the supported decision-making agreements
act, unless the context indicates otherwise:
(a) "Adult" means an individual who is 18 years of age or older.
(b) "Affairs" means decisions related to the following affairs of a
principal:
(1) Monitoring health, obtaining, scheduling, implementing and
coordinating health and support services, understanding healthcare
information and options, providing for care and comfort, and other
healthcare and personal matters in which the principal makes decisions
about the principal's healthcare;
(2) managing income and assets and the use of income and assets for
clothing, support, care, comfort, education, shelter and payment of other
liabilities of the principal;
(3) handling personal, healthcare and financial matters that arise in
the course of daily living;
(4) monitoring information about the principal's support services,
including necessary or recommended future support services;
(5) living arrangements, including where and with whom the
principal wants to live; and
(6) working arrangements, including where the principal wants to
work.
(c) "Capacity" means the ability to understand and appreciate the
nature and consequences of a decision and the ability to reach and
communicate an informed decision.
(d) "Conservator" means a person appointed a conservator under the
act for obtaining a guardian or a conservator, or both, K.S.A. 59-3050 et
seq., and amendments thereto, or a similar law of another state.
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(e) "Decision" means a decision relating to the affairs of a principal.
(f) "Decision-making assistance" means the decision-making
assistance described in section 7, and amendments thereto.
(g) "Good faith" means honesty in fact and the observance of
reasonable standards of fair dealing.
(h) "Guardian" means a person appointed a guardian under the act for
obtaining a guardian or a conservator, or both, K.S.A. 59-3050 et seq., and
amendments thereto, or a similar law of another state.
(i) "Immediate family member" means a spouse, child, sibling,
parent, grandparent, grandchild, stepparent, stepchild or stepsibling.
(j) "Person" means an individual, healthcare institution, healthcare
provider, corporation, partnership, limited liability company, association,
joint venture, government, governmental subdivision, governmental
agency, governmental instrumentality, public corporation, or another legal
or commercial entity.
(k) "Principal" means an adult who enters into a supported decision-
making agreement under the supported decision-making agreements act to
receive decision-making assistance.
(l) "Support services" means the following services:
(1) House repair, home cleaning, laundry, shopping and providing
meals;
(2) transportation, accompanying a principal, and facilitating a
principal's written, oral and electronic communication;
(3) nurse visitations and attendant care;
(4) provision of healthcare;
(5) physical and psychosocial assessments;
(6) financial assessments and advice on banking, taxes, loans,
investments and management of real property;
(7) legal assessments and advice;
(8) education and educational assessments and advice;
(9) assistance with bathing, dressing, eating, range of motion,
toileting, transferring, ambulation and other direct assistance with the
activities of daily living;
(10) care planning; and
(11) services that assist in maintaining the independence of a
principal.
(m) "Supported decision-making agreement" means an agreement
authorized under section 3, and amendments thereto.
(n) "Supporter" means an adult who enters into a supported decision-
making agreement under the supported decision-making agreements act
and provides decision-making assistance.
New Sec. 3. (a) Except as provided in subsections (b) and (c), an
adult may enter into a supported decision-making agreement. A supported
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decision-making agreement allows an adult to receive decision-making
assistance with the adult's affairs from one or more other adults.
(b) The adult wanting to receive decision-making assistance shall not
enter into a supported decision-making agreement unless the adult:
(1) Enters into the agreement voluntarily and without coercion or
undue influence; and
(2) understands the nature and effect of the agreement.
(c) An adult shall not enter into a supported decision-making
agreement if the agreement encroaches on the authority of a guardian or
conservator of the adult, unless the guardian or conservator approves in
writing the adult entering into the supported decision-making agreement.
(d) A supporter shall be an adult but shall not be a person against
whom a protective order or restraining order has been entered by a court
on request of or on behalf of the principal.
New Sec. 4. (a) A supported decision-making agreement shall:
(1) Name one or more adults to provide a principal with decision-
making assistance;
(2) describe the decision-making assistance that each supporter may
provide the principal; and
(3) contain a notice to third parties that summarizes the rights and
obligations of the supporter under the supported decision-making
agreements act and expressly identifies section 1 et seq., and amendments
thereto.
(b) A supported decision-making agreement may:
(1) Name an alternate supporter to act in the place of a supporter and
the circumstances under which the alternate supporter may act;
(2) authorize a supporter to share information with another supporter
named in the agreement, including an alternate supporter.
(c) A supported decision-making agreement shall contain a separate
declaration by each supporter, including an alternate supporter, that states
the supporter's relationship with the principal, states the willingness of the
supporter to act as a supporter for the principal and indicates that the
supporter acknowledges the duties of a supporter under the supported
decision-making agreements act. Each declaration shall be signed by the
supporter making the declaration.
(d) Nothing in this act shall:
(1) Require a person to have a written supported decision-making
agreement in order to engage in formal or informal supported decision-
making; or
(2) prevent a person from providing evidence that a supported
decision-making agreement was used as an alternative to guardianship
during the course of a guardianship proceeding.
New Sec. 5. (a) A supported decision-making agreement shall be
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valid if:
(1) The agreement is dated and in writing;
(2) the agreement satisfies the requirements of sections 3 and 4, and
amendments thereto;
(3) the agreement has been signed by the principal and each named
supporter, including any alternate supporter, and the:
(A) Signing takes place in the presence of two witnesses who also
sign the agreement; or
(B) signatures of the principal and each named supporter, including
any alternate supporter, are notarized; and
(4) when the principal has a guardian or conservator, the principal has
notified the guardian or conservator of the agreement.
(b) (1) Each witness under subsection (a) shall be an adult who
understands the means of communication used by the principal, except, if
there is an individual who understands the principal's means of
communication present to assist during the execution of the supported
decision-making agreement, the witnesses are not required to understand
the means of communication used by the principal.
(2) A witness under subsection (a) shall not be a supporter named in
the supported decision-making agreement or an employee or agent of a
supporter named in the supported decision-making agreement.
(c) A supported decision-making agreement shall be substantially in
compliance with the form set forth by the judicial council. The judicial
council shall develop a form for use under the supported decision-making
agreements act.
New Sec. 6. (a) A supported decision-making agreement may indicate
the date it becomes effective and its duration. If the agreement does not
indicate the date it becomes effective, the agreement becomes effective
immediately. If the agreement does not indicate its duration, the agreement
remains effective until terminated under this section.
(b) A principal may, at any time, terminate all or a portion of a
supported decision-making agreement. A supporter may, at any time,
terminate all or a portion of the supporter's obligations under a supported
decision-making agreement, including the declaration of support described
in section 4, and amendments thereto.
(c) A termination under this section shall be dated and in writing. The
termination shall be signed by the terminating party.
(d) A principal or supporter terminating all or a portion of a supported
decision-making agreement shall notify the other party to the agreement
that the agreement has been terminated. Notice shall be given in person, by
certified mail or by electronic means.
(e) If a portion of a supported decision-making agreement is
terminated under this section and the termination is consistent with this
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section, the remainder of the agreement remains in effect.
New Sec. 7. (a) A supporter shall act with the care, competence and
diligence ordinarily exercised by individuals in similar circumstances.
(b) Except as limited by a supported decision-making agreement, a
supporter may provide to a principal the following decision-making
assistance about the principal's affairs:
(1) Assisting with making decisions, communicating decisions, and
understanding information about, options for, the responsibilities of, and
the consequences of decisions;
(2) accessing, obtaining, and understanding information that is
relevant to decisions necessary for the principal to manage the principal's
affairs, including medical, psychological, financial and educational
information, medical treatment records and other records;
(3) ascertaining the wishes and decisions of the principal, assisting in
communicating those wishes and decisions to other persons, and
advocating to ensure the implementation of the principal's wishes and
decisions; and
(4) accompanying the principal and participating in discussions with
other persons when the principal is making decisions or attempting to
obtain information for decisions.
(c) Under subsection (b), a supporter may use the principal's dated
consent to assist the principal in obtaining protected health information
under the health insurance portability and accountability act of 1996,
public law 104-191, or educational records under the family educational
rights and privacy act of 1974, 20 U.S.C. § 1232g.
(d) If a supporter uses financial information obtained pursuant to this
act, a financial institution may consider that person to have obtained
access authority pursuant to the electronic fund transfer act, 15 U.S.C. §
1693 et seq. and regulation E, 12 C.F.R. § 1005. Nothing in this section
shall be construed to relieve a supporter who misrepresents the access
authority from criminal liability.
(e) A supporter shall not:
(1) Exert undue influence on the principal;
(2) make decisions for or on behalf of the principal;
(3) sign for the principal or provide an electronic signature of the
principal to a third party;
(4) obtain, without the consent of the principal, information that is not
reasonably related to matters with which the supporter may assist the
principal under the supported decision-making agreement; or
(5) use, without the consent of the principal, information acquired for
a purpose authorized by the supported decision-making agreement for a
purpose other than assisting the principal to make a decision under the
supported decision-making agreement.
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(f) A supporter who collects information on behalf of the principal
under the supported decision-making agreement shall:
(1) Keep the information confidential;
(2) not use the information for a use that is not authorized by the
principal;
(3) protect the information from unauthorized access, use or
disclosure; and
(4) dispose of the information properly when appropriate.
(g) A supporter acting in good faith in accordance with the provisions
of this act shall not be liable to either the principal or any third party for
any injuries, damages or other losses arising from a decision made by a
principal in which the supporter assisted the principal or was otherwise
involved.
New Sec. 8. (a) A person shall recognize a decision or request made
or communicated with the decision-making assistance of a supporter under
the supported decision-making agreements act as the decision or request of
the principal for the purposes of a provision of law, and the principal or
supporter may enforce the decision or request in law or equity on the same
basis as a decision or request of the principal.
(b) A person who, in good faith, either acts in reliance on an
authorization in a supported decision-making agreement or declines to
honor an authorization in a supported decision-making agreement is not
subject to civil or criminal liability or to discipline for unprofessional
conduct for:
(1) Complying with an authorization in a supported decision-making
agreement, if the person is complying based on an assumption that the
underlying supported decision-making agreement was valid when made
and has not been terminated;
(2) declining to comply with an authorization in a supported decision-
making agreement if the person is declining based on actual knowledge
that the supported decision-making agreement is invalid or has been
terminated; or
(3) declining to comply with an authorization related to healthcare in
a supported decision-making agreement, if the person is declining because
the action proposed to be taken under the supported decision-making
agreement is contrary to the good faith medical judgment of the person or
to a written policy of a healthcare institution that is based on reasons of
conscience.
New Sec. 9. (a) An adult who enters into a supported decision-
making agreement may act without the decision-making assistance of the
supporter.
(b) The execution of a supported decision-making agreement shall
not constitute evidence that the principal does not have capacity.
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(c) In the application of the supported decision-making agreements
act:
(1) A decision that a principal is incapable of managing the principal's
affairs may not be based on the manner in which the principal
communicates with others; and
(2) a principal is considered to have capacity even if the capacity is
achieved by the principal receiving decision-making assistance, unless a
court has determined that the principal does not have capacity.
Sec. 10. K.S.A. 2022 Supp. 21-5417 is hereby amended to read as
follows: 21-5417. (a) Mistreatment of a dependent adult or an elder person
is knowingly committing one or more of the following acts:
(1) Infliction of physical injury, unreasonable confinement or
unreasonable punishment upon a dependent adult or an elder person;
(2) taking the personal property or financial resources of a dependent
adult or an elder person for the benefit of the defendant or another person
by taking control, title, use or management of the personal property or
financial resources of a dependent adult or an elder person through:
(A) Undue influence, coercion, harassment, duress, deception, false
representation, false pretense or without adequate consideration to such
dependent adult or elder person;
(B) a violation of the Kansas power of attorney act, K.S.A. 58-650 et
seq., and amendments thereto;
(C) a violation of the Kansas uniform trust code, K.S.A. 58a-101 et
seq., and amendments thereto; or
(D) a violation of the act for obtaining a guardian or a conservator, or
both, K.S.A. 59-3050 et seq., and amendments thereto; or
(E) a violation of the supported decision-making act, section 1 et
seq., and amendments thereto; or
(3) omission or deprivation of treatment, goods or services that are
necessary to maintain physical or mental health of such dependent adult or
elder person.
(b) Mistreatment of a dependent adult or an elder person as defined
in:
(1) (A) Subsection (a)(1) is a severity level 5, person felony, except as
provided in subsection (b)(1)(B);
(B) subsection (a)(1) is a severity level 2, person felony, when the
victim is a dependent adult who is a resident of an adult care home, as
described in subsection (e)(2)(A), during the commission of the offense;
(2) subsection (a)(2) if the aggregate amount of the value of the
personal property or financial resources is:
(A) $1,000,000 or more is a severity level 2, person felony;
(B) at least $250,000 but less than $1,000,000 is a severity level 3,
person felony;
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(C) at least $100,000 but less than $250,000 is a severity level 4,
person felony;
(D) at least $25,000 but less than $100,000 is a severity level 5,
person felony;
(E) at least $1,500 but less than $25,000 is a severity level 7, person
felony;
(F) less than $1,500 is a class A person misdemeanor, except as
provided in subsection (b)(2)(G); and
(G) less than $1,500 and committed by a person who has, within five
years immediately preceding commission of the crime, been convicted of a
violation of this section two or more times is a severity level 7, person
felony; and
(3) (A) subsection (a)(3) is a severity level 8, person felony, except as
provided in subsection (b)(3)(B); and
(B) subsection (a)(3) is a severity level 5, person felony, when the
victim is a dependent adult who is a resident of an adult care home, as
described in subsection (e)(2)(A), during the commission of the offense.
(c) It shall be an affirmative defense to any prosecution for
mistreatment of a dependent adult or an elder person as described in
subsection (a)(2) that:
(1) The personal property or financial resources were given as a gift
consistent with a pattern of gift giving to the person that existed before the
dependent adult or elder person became vulnerable;
(2) the personal property or financial resources were given as a gift
consistent with a pattern of gift giving to a class of individuals that existed
before the dependent adult or elder person became vulnerable;
(3) the personal property or financial resources were conferred as a
gift by the dependent adult or elder person to the benefit of a person or
class of persons, and such gift was reasonable under the circumstances; or
(4) a court approved the transaction before the transaction occurred.
(d) No dependent adult or elder person is considered to be mistreated
under subsection (a)(1) or (a)(3) for the sole reason that such dependent
adult or elder person relies upon or is being furnished treatment by
spiritual means through prayer in lieu of medical treatment in accordance
with the tenets and practices of a recognized church or religious
denomination of which such dependent adult or elder person is a member
or adherent.
(e) As used in this section:
(1) "Adequate consideration" means the personal property or
financial resources were given to the person as payment for bona fide
goods or services provided by such person and the payment was at a rate
customary for similar goods or services in the community that the
dependent adult or elder person resided in at the time of the transaction.
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(2) "Dependent adult" means an individual 18 years of age or older
who is unable to protect the individual's own interest. Such term shall
include "Dependent adult" includes, but is not limited to, any:
(A) Resident of an adult care home including, but not limited to,
those facilities defined by K.S.A. 39-923, and amendments thereto;
(B) adult cared for in a private residence;
(C) individual kept, cared for, treated, boarded, confined or otherwise
accommodated in a medical care facility;
(D) individual with intellectual disability or a developmental
disability receiving services through a community facility for people with
intellectual disability or residential facility licensed under K.S.A. 39-2001
et seq., and amendments thereto;
(E) individual with a developmental disability receiving services
provided by a community service provider as provided in the
developmental disability reform act; or
(F) individual kept, cared for, treated, boarded, confined or otherwise
accommodated in a state psychiatric hospital or state institution for people
with intellectual disability.
(3) "Elder person" means a person 60 years of age or older.
(f) An offender who violates the provisions of this section may also
be prosecuted for, convicted of, and punished for any other offense in
article 54, 55, 56 or 58 of chapter 21 of the Kansas Statutes Annotated, or
K.S.A. 2022 Supp. 21-6418, and amendments thereto.
Sec. 11. K.S.A. 2022 Supp. 21-5417 is hereby repealed.
Sec. 12. This act shall take effect and be in force from and after its
publication in the statute book.
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