A Practical Guide to Guardianship and Conservatorship in Missouri (part 1 of 2)
A guardianship proceeding is a legal process of determining a person’s capacity and the ability he or she has to make decisions regarding his or her health, safety and welfare. The person at issue is generally referred to as the Respondent until a final determination is made. Once he or she is determined to be incapacitated, they enjoy the title of “Ward” or “Protectee.” A guardian is a person appointed by a court (typically the probate division of the circuit court where the Ward resides) to make decisions for a Ward once they have been legally determined to be incapacitated. A conservatorship proceeding is a similar legal process to the guardianship process, but it determines a person’s ability to make decisions regarding their financial affairs. While it is not unusual for a person to be appointed both guardian and conservator for a Ward, it is also not unusual for a court to only appoint a guardian if the Ward has no income or assets to address.
Section 4785.060 of the Missouri Revised Statutes provides the manner in which someone files a petition for the appointment of a guardian in Missouri. The petition is required to include the name, age, permanent residence, actual place of residence, and post office address of the minor or adult person alleged to be incapacitated. The petition also includes exhibits detailing the person’s estimated wealth, the names and addresses of any known relatives and the name and address of anyone already having custody of the minor or adult person. Finally, the petition must include an affidavit signed by a medical provider who alleges the Respondent is unable by reason of physical or mental deficiencies, to make decisions on their own behalf – that the person is indeed incapacitated.
Section 475.061 of the Missouri Revised Statutes provides the manner in which someone files a petition for the appointment of a conservator in Missouri. Just as in the case of a guardian, the petition must state certain statutorily required information including the Respondent’s personal information, the reasons why a conservatorship is sought and the specific reasons why the Respondent is unable to receive and evaluate information or communicate decisions to such an extent that he or she cannot manage his or her financial resources.
Section 475.035 of the Missouri Revised Statutes tells us where to file a petition for guardianship or conservatorship. It must be filed in the circuit court, probate division where the Respondent resides. If the Respondent has no official residence, the petition is filed in the county where the Respondent owns property or where the property the Respondent owns is found.
Is an attorney required to file a petition for guardianship or conservatorship? Well, you can take out your own spleen but that isn’t advisable. Similar to a complex operation, the petition alleging someone as incapacitated or disabled is a complex process and is it advisable to consult with and hire an attorney to prepare the petition and argue the allegations.
Section 475.078 of the Missouri Revised Statutes describes the effect of an adjudication of incapacity. A person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent by Missouri law. To that end, such a person generally loses legal rights that most other Americans who are not incapacitated enjoy such as the right to drive a vehicle, the right to vote, and the right to enter into a private contract.
But an order of incapacity isn’t a one-size-fits-all order. The court can at any time after the hearing, determine that the incapacitated person is incompetent for some purposes yet competent for others. The court’s order may specify the powers and duties of the guardian and conservator so as to allow the incapacitated person to care for himself or herself to the extent they are able (e.g., the Ward may be allowed to drive in an effort to maintain employment). On the other hand, the court’s order may be amended in the future to increase the powers of a guardian and conservator if necessary (e.g., the order may prohibit the ability to drive if the Ward becomes a danger to others on Missouri roadways).
Todd Miller is a monthly contributor and regularly writes and speaks on various legal topic including estate planning, probate and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been recognized as 2016 Adviser of the Year by GolfInc; Golf Tax Consultant of the Year by Boardroom Magazine three times; and “10 Best” attorneys by the American Institute of Family Law Attorneys and “10 Best” attorneys by the American Institute of Criminal Law Attorneys. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, LinkedIn, and Twitter.