A
Abuse: Any act or failure to act performed intentionally or recklessly that causes or is likely to cause harm to an adult including: infliction of physical or mental injury; any sexual act with an adult when the adult does not consent or when the other person knows or should know that the adult is incapable of resisting or declining consent to the sexual act due to mental deficiency or disease or due to fear of retribution or hardship; unreasonable use of a physical restraint, isolation or medication that harms or is likely to harm an adult; unreasonable use of physical or chemical restraint, medication or isolation as punishment, for convenience, in conflict with a physician’s orders or as a substitute for treatment, except where such conduct or physical restraint is in furtherance of the health and safety of the adult; a threat or menacing conduct directed toward an adult that results or might reasonably be expected to result in fear or emotional or mental distress to an adult. K.S.A. 39-1430(a).
Administrative Hearing: A due process hearing which is held to appeal a decision made by a state agency.
Adult with an Impairment in need of a Guardian or Conservator or both: A person 18 years of age or older whose ability to receive and evaluate relevant information, or to effectively communicate decisions, or both, even with the use of assistive technologies or other supports, is impaired such that the person lacks the capacity to manage such persons’ estate, or to meet essential needs for physical health, safety or welfare and is in need of a guardian or a conservator.
Adult: A person 18 years of age or older alleged to be unable to protect such person’s own interest and who is harmed or threatened with harm, whether financial, mental or physical in nature, through action or inaction by either another individual or through such person’s own action or inaction. K.S.A. 39-1430 (b). Also referred to as vulnerable adult.
Allegation: A claim of abuse, neglect, or financial exploitation.
Alleged Perpetrator: A person who has been accused of adult abuse, neglect, or financial exploitation.
Alleged Victim: A vulnerable adult who is suspected of being abused, neglected, or financially exploited.
Appropriate Alternative: Any program, service or use of a legal device or representative enabling a person with an impairment to adequately meet essential needs for physical health, safety welfare or to reasonably manage such person’s estate. Appropriate alternatives may include but are not limited to; a power of attorney, a power of attorney for health care decisions, a living will, a trust, a joint tenancy or a representative payee K.S.A 59 – 3051(b).
C
Caretaker: A person who has assumed responsibility whether legally or not, for an adult’s care or financial management or both.
Central Registry: Name-based list of persons who have been substantiated for adult abuse, neglect, fiduciary abuse, exploitation and/or financial exploitation. The name of the perpetrator is not entered in the Adult Abuse, Neglect, and Exploitation (ANE) Central Registry until they have been afforded an opportunity for an interview and have exercised their right of appeal or the time limit for appeal has expired without action.
Clear and Convincing: Clear and convincing evidence is defined as the evidence which shows the truth of the facts asserted is highly probable.
Coercion: Compulsion, constraint, compelling by force or arms or threat. It may be actual, direct, or positive, as physical force is used to compel act against ones will, or implied, legal or constructive, as in one party is constrained by subjugation
to other to do what this free will would refuse.
Conservator: An individual or corporation appointed under law to act and make decisions regarding the financial resources or estate of an adult with an impairment, known as a “conservatee” K.S.A. 59-3051(d).
There are three (3) types of conservator:
Ancillary Conservator – Person appointed by the court for an individual who:
Temporary Conservator (Emergency Conservator under former statute) – Person or approved corporation appointed by the court when there is imminent danger that the estate will be significantly depleted. The court can appoint a temporary conservator pending the hearing on the petition for appointment of a permanent conservator K.S.A. 59-3073.
Voluntary Conservator– Created when an adult petitions the court to have a person or corporation appointed to make financial decisions. There is no judgment of impairment of the individual or lack of appropriate alternatives for managing the person’s estate K.S.A 59-3056.
Corrective Action Plan (CAP): A written plan established and agreed upon between
the APS Specialist and the alleged perpetrator(s) following the completion of the
investigation and making of a substantiated finding of fiduciary abuse or exploitation.
D
Developmental Disability: K.S.A. 39-1803 – Developmental Disability means a severe,
chronic disability which:
Disability Rights Center of Kansas (DRC): (formerly Kansas Advocacy and Protective Services) is a public interest legal advocacy agency empowered by federal law to advocate for the civil and legal right of Kansans with disabilities. DRC is the official Protection and Advocacy System for Kansas and is part of the national network of federally mandated and funded protection and advocacy systems. As such, DRC advocates for the right of Kansas with disabilities under state or federal laws (ADA, the Rehabilitation Act, Federal Medicaid Act, Kansas Act Against Discrimination, etc.). DRC is a private nonprofit corporation, independent of both state government and disability service providers, allowing DRC to focus on the disability rights needs of Kansans with disabilities.
Due Process for Guardianship/Conservatorship Hearings: The right of a proposed ward and/or conservatee to receive notice and opportunity to be heard, to have legal counsel and a court hearing.
Duress: An illegal imprisonment, or legal imprisonment used for an illegal purpose, or threat of bodily harm, or other means amounting to or tending to cause the will of another, and actually inducing him to do an act contrary to his free will.
E
Elder Justice: Efforts to prevent, detect, treat, intervene in, and prosecute elder abuse, neglect, and exploitation and protect elders with diminished capacity while maximizing their autonomy; the recognition of an elder’s rights, including the right to be free from abuse, neglect, and exploitation. (H.R. 3590- Elder Justice Act).
Ex parte: A judicial proceeding in which the court or tribunal hears only one side of the controversy (such as in temporary guardian or temporary conservator hearings).
F
Financial Exploitation: Means the unlawful or improper use, control or withholding of an adult's property, income, resources or trust funds by any other person or entity in a manner that is not for the profit of or to the advantage of the adult. "Financial exploitation" includes, but is not limited to:
(1) The use of deception, intimidation, coercion, extortion or undue influence by a person or entity to obtain or use an adult's property, income, resources or trust funds in a manner for the profit of or to the advantage of such person or entity; (2) the breach of a fiduciary duty, including, but not limited to, the misuse of a power of attorney, trust or a guardianship or conservatorship appointment, as it relates to the property, income, resources or trust funds of the adult; or (3) the obtainment or use of an adult's property, income, resources or trust funds, without lawful authority, by a person or entity who knows or clearly should know that the adult lacks the capacity to consent to the release or use of such adult's property, income, resources or trust funds. K.S.A. 39-1430(e).
Financial Institution: Any bank, trust company, escrow company, finance company, savings institution or credit union chartered and supervised under state or federal
law.
Findings: The agency’s conclusion regarding whether abuse, neglect, or financial exploitation occurred based on facts gathered during the investigation as follows:
Unsubstantiated – The facts or circumstances do not provide clear and convincing evidence to meet the KSA definition of abuse, neglect, or financial exploitation.
Substantiated – The facts and circumstances provide clear and convincing evidence to conclude the Alleged Perpetrator's actions or inactions meet the K.S.A. definition of abuse, neglect, or financial exploitation.
G
Guardian: An individual, or approved corporation or nonprofit corporation appointed under law to act and make decisions of “physical health or safety on behalf of an adult with an impairment known as a “ward” K.S.A. 59-3051(e).
Governmental Assistance Provider: An agency or employee of such agency, which is funded solely or in part to provide assistance within the Kansas Senior Care Act, K.S.A. 75-5926 et seq. and amendments thereto, including Medicaid and Medicare K.S.A. 39-1401(n)
H
Harassment: Words, gestures, and/or actions which tend to annoy, alarm, and verbally abuse another person.
Harm: Physical or psychological injury or damage.
I
In Need of a Conservator: A person who because of both impairment and the lack of appropriate alternative for managing such person’s estate requires the appointment
of a conservator K.S.A 59-3051(g).
In Need of a Guardian: A person who because of both an impairment and the lack of appropriate alternative for meeting essential needs, requires the appointment of
a guardian K.S.A 59-3051(f).
In Need of Protective Services: An adult who is unable to provide for or obtain services which are necessary to maintain physical or mental health. K.S.A. 39-1430(f)).
Intellectual disability: means substantial limitations in present functioning that is manifested during the period from birth to age 18 years and is characterized by significantly subaverage intellectual functioning existing concurrently with deficits in adaptive behavior including related limitations in two or more of the following applicable adaptive skill areas: Communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work. K.S.A. 39-1803 (h).
Involved Adult: An adult who is the subject of a report of abuse, neglect, or financial exploitation under this act K.S.A. 39-1430(m)
K
Kansas Protection Report Center (KRPC): The 24/7 centralized call center within Department for Children and Families where reports of abuse, neglect, and financial exploitation are received, initial assessments are completed, and if assigned response time is determined.
K.A.R. : Kansas Administrative Regulation
K.G.P. : Kansas Guardianship Program. KGP recruits volunteers to be guardians and conservators for certain eligible individuals.
K.S.A. : Kansas Statutes Annotated
L
Lacks Capacity to Consent: An impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, to the extent that an adult lacks sufficient understanding of the nature or consequences of decisions concerning their person or property.
Law Enforcement: Public office which is vested by law with the duty to maintain public order, make arrests for crimes investigate criminal acts and file criminal charges, whether that duty extends to all crimes or is limited to specific crimes K.S.A. 39-1430
(l).
Least Restrictive Action: The provision of protective services and accommodations in a manner no more restrictive of an individual’s personal liberty and no more intrusive than necessary to achieve acceptable and treatment objectives K.S.A 39 – 1442.
Legal Representative: 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 K.S.A. 39- 1401(p).
Life Estate: An estate whose duration is limited in duration to the life of the party holding it, or to the life of some other person (Black’s Law Dictionary, Fifth Edition).
Likelihood: Implies more than speculation and less than certainty. An event is likely if a reasonable person using common sense, training or experience concludes that, given the circumstances, an event is probable without a change in those circumstances.
M
Mandated Reporter: When any of the following persons has reasonable cause to suspect or believe that an adult is in need of a protective services or being harmed as a result of abuse, neglect or financial exploitation, such person shall promptly report the matter as provided by the provisions of this section:
Meet Essential Needs for Physical Health, Safety or Welfare: Making determinations and taking actions which are reasonably necessary in order for a person to obtain or be provided with shelter, sustenance, personal hygiene or health care, and without
which serious illness or injury is likely to occur K.S.A. 59-3051(i).
Mental Illness: A mental disorder which is manifested by clinically significant behavioral or psychological syndrome or pattern and associated with either a painful symptom or an impairment in one or more important areas of functioning, and involving substantial behavioral psychological or biological dysfunction, to the extent that the person is in need of treatment K.S.A. 59-2946.
N
Neglect: The failure or omission by one’s self, caretaker or another person with a duty to supply or to provide goods or services which are reasonably necessary to ensure safety and well-being and to avoid physical or mental harm or illness K.S.A.
39-1430 (c).
P
Power of Attorney: A written instrument authorizing another to act as one’s agent or attorney in fact:
Durable Power of Attorney – A power of attorney by which a principal designates another as the principal’s attorney in fact in writing and the writing contains the words “this power of attorney shall not be affected by subsequent disability or incapacity of the principal”, or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or capacity K.S.A. 58-610. All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal has the same effect an inure to the benefit of and bind the principal and principal’s successors in interest as if the principal were competent or not disabled K.S.A. 58-611. All power of attorney documents may be filed at the Register of Deeds K.S.A. 58-602.
Durable Power of Attorney for Health Care Decisions – A durable power of attorney for Health Care Decisions is a power of attorney by which a principal designates another as the principal’s agent in writing and the writing contains the words “this power of attorney for health care decision shall not be affected by subsequent disability or incapacity of the principal” or “this power of attorney for health care decision shall become effective upon the disability or incapacity of the principal”, or similar words showing the intent of the principal the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity K.S.A. 58-625.
Prehearing Conference: A procedure that is used in an administrative hearing to determine questions of discovery, witnesses, issues, procedures and to set a hearing date. Usually, this is done with the hearing officer and the attorneys for the Appellant and Respondent.
Protective Services: Services provided by the state, or other governmental agency, or by private organizations or individuals that are necessary to prevent abuse, neglect, or financial exploitation. Such protective services include, but are not limited to, evaluation of the needs for services, assistance in obtaining appropriate social services, and assistance in securing medical and legal services K.S.A. 39-1430(h).
R
Report: Description or accounting of an incident or incidents of abuse, neglect, or financial exploitation under this act and for the purposes of this act does not include any written assessment or findings K.S.A. 39-1430(k).
Resident: Any individual kept cared for, treated, boarded or otherwise accommodated in facilities licensed by Kansas Department of Health and Environment or Kansas Department for Aging and Disability Services K.S.A. 39-923(a) (13).
Risk Assessment: The process by which the Involved Adult is evaluated for risk of harm and for the physical and cognitive abilities to protect his or her interests and personal safety. Other factors such as the living situation and, support systems are also evaluated to determine the impact on the individual's ability to become or remain safe.
S
Self-Neglect: An adult who fails to meet their own essential physical, psychological or social needs, which threatens their health, safety and well-being. This includes failure to provide adequate food, clothing, shelter and health care for one’s own needs.
Service Plan: A written plan (PPS 10500) which assists the APS Specialist and the Involved Adult identify services and goals to be achieved through APS intervention.
Services Necessary to Maintain Physical and/or Mental Health: Services that include, but are not limited to, the provision of medical care for physical and mental health needs, the relocation of an adult to a facility or institution able to offer such
care, assistance in personal hygiene, food, clothing, adequately heated and ventilated
shelter, protection from health and safety hazards, protection from maltreatment,
the result of which includes, but is not limited to, malnutrition, deprivation of
necessities or physical punishment and transportation necessary to secure any of
the above stated needs, except that shall not include taking such persons into custody
without consent, except as provided in this act K.S.A. 39-1430(g).
Social Security Representative Payee: A person appointed by the Social Security Administration (SSA) to take control and responsibility of another person’s Social Security funds. A person or agency interested in becoming a payee must apply to the SSA. The SSA is not required to appoint the conservator as payee. The SSA can appoint anyone they deem appropriate based on their standards.
State Agency: Any officer, department, bureau, division, board, authority, agency, commission or institution of this state, except the judicial and legislative branches, which is authorized by law to promulgate rules and regulations concerning the administration,
enforcement or interpretation of any law of this state as defined in K.S.A 46-224.
T
Temporary Guardian: (Emergency Guardian under former statute): Person or approved corporation appointed by the court when there is an imminent danger to the health, or safety of the proposed ward.
Trust: A right of property, real or personal, held by one party for the benefit of another. An irrevocable trust cannot be revoked or recalled after its creation.
U
Undue Influence: Misuse of position of confidence or taking advantage of a person’s weakness, infirmity or distress to change improperly that person’s action or decisions.