58-662. Accounting; determination of disability; modification, termination or removal of attorney in fact; limitations for principal to bring actions.
58-662
58-662. Accounting; determination of disability;modification, termination or removal of attorney in fact; limitations forprincipal to bring actions.(a) The principal may petition the court for an accounting by the principal'sattorney in fact or the legal representative of the attorney in fact. If theprincipal is disabled or deceased, a petition for accounting may be filed bythe principal's legal representative, an adult member of the principal's familyor any person interested in the welfare of the principal.
(b) Any requirement for an accounting may be waived or an accounting may beapproved by the court without hearing, if the accounting is waived or approvedby a principal who is not disabled, or by a principal whose legal capacity hasbeen restored, or by all creditors and distributees of a deceased principal'sestate whose claims or distributions theretofore have not been satisfied infull. The approval or waiver shall be in writing, signed by the affectedpersons and filed with the court.
(c) For the purposes of subsection (b), a legal representative or a personproviding services to the principal's estate shall not be considered a creditorof the principal's estate. No express approval or waiver shall be requiredfrom the legal representative of a disabled principal if the principal's legalcapacity has been restored, or from the personal representative of a deceasedprincipal's estate, or from any other person entitled to compensation orexpense for services rendered to a disabled or deceased principal's estate,unless the principal or the principal's estate is unable to pay in full thecompensation and expense to which the person rendering the servicesmay be entitled.
(d) The principal, the principal's attorney in fact, an adult member of theprincipal's family or any person interested in the welfare of the principal maypetition the district court in the county where the principal is then residingto determine and declare whether a principal, who has executed a power ofattorney, is a disabled person.
(e) If the principal is a disabled person, on petition of the principal'slegal representative, an adult member of the principal's family or anyinterested person, including a person interested in the welfare of theprincipal, for good cause shown, the court may:
(1) Order the attorney in fact to exercise or refrain from exercisingauthority in a durable power of attorney in a particular manner or for aparticular purpose;
(2) modify the authority of an attorney in fact under a durablepower of attorney;
(3) declare suspended a power of attorney that is nondurable;
(4) terminate a durable power of attorney;
(5) remove the attorney in fact under a durable power of attorney;
(6) confirm the authority of an attorney in fact or a successor attorney infact to act under a durable power of attorney; and
(7) issue such other orders as the court finds will be in the best interestof the disabled principal, including appointment of a conservator for theprincipal pursuant to K.S.A. 59-3050, et seq.,and amendments thereto.
(f) In addition to any other remedies available under law, if after noticeand hearing, the court determines that there has been a showing that theprincipal is a disabled person and that the attorney in fact has breached suchattorney in fact's fiduciary duty to the principal or that there is areasonable likelihood that such attorney in fact may do so in the immediatefuture, the court, in its discretion, may issue an order that some or all ofthe authority granted by the durable power of attorney be suspended ormodified, and that a different attorney in fact be authorized to exercise someor all of the powers granted by the durable power of attorney. Such attorney infact may be designated by the court. The court may require any personpetitioning for any such order to file a bond in such amount and with suchsureties as required by the court to indemnify either the attorney in fact whohas been acting on behalf of the principal or the principal and the principal'ssuccessors in interest for the expenses, including attorney fees, incurred byany such persons with respect to such proceeding. The court, after hearing, mayallow payment or enter judgment. None of the actions described in thissubsection shall be taken by the court until after hearing upon reasonablenotice to all persons identified in a verified statement supplied by thepetitioner who is requesting such action identifying the immediate relatives ofthe principal and any other persons known to the petitioner to be interested inthe welfare of the principal. Except that in the event of an emergency asdetermined by the court, the court, without notice, may enter such temporaryorder as seems proper to the court, but no such temporary order shall beeffective for more than 30 days unless extended by the court after hearing onreasonable notice to the persons identified as herein provided.
(g) If a power of attorney is suspended or terminated by the court or theattorney in fact is removed by the court, the court may require an accountingfrom the attorney in fact and order delivery of any property belonging to theprincipal and copies of any necessary records of the attorney in factconcerning the principal's property and affairs to a successor attorney in factor the principal's legal representative.
(h) In a proceeding under this act or in any other proceeding, or uponpetition of an attorney in fact or successor, the court may:
(1) Require or permit an attorney in fact under a power of attorneyto account;
(2) authorize the attorney in fact under a power of attorney to enter intoany transaction, or approve, ratify, confirm and validate any transactionentered into by the attorney in fact that the court finds is, was or will bebeneficial to the principal and which the court has power to authorize for aconservator pursuant to K.S.A. 59-3050 et seq., and amendmentsthereto; and
(3) relieve the attorney in fact of any obligation to exercise authority fora disabled principal under a durable power of attorney.
(i) Unless previously barred by adjudication, consent or limitation, anycause of action against an attorney in fact or successor for breach of duty tothe principal shall be barred as to any principal who has received an accountor other statement fully disclosing the matter unless a proceeding to assertthe cause of action is commenced within two years after receipt of the accountor statement by the principal or, if the principal is a disabled person, by aguardian or conservator of the disabled person's estate. If a disabled personhas no guardian or conservator of the disabled person's estate at the time anaccount or statement is presented, then the cause of action shall not be barreduntil one year after the removal of the principal's disability or incapacity,one year after the appointment of a conservator for the principal or one yearafter the death of the principal. The cause of action thus barred does notinclude any action to recover from an attorney in fact or successor for fraud,misrepresentation or concealment related to the settlement of any transactioninvolving the agency relationship of the attorney in fact with the principal.
History: L. 2003, ch. 58, § 13;L. 2004, ch. 50, § 4; July 1.