A practical guide to guardianship and conservatorship in Missouri (part 2 of 2)
This article continues our examination of the guardianship and conservatorship process in Missouri. We pick up the process after the adjudication hearing is held…
If the Petitioner proves by a preponderance of the evidence that the Respondent is incapacitated or disabled, or both, the court will seek to determine the degree of supervision necessary for the Ward. In doing so, the court shall apply the “least restrictive environment principle.” That principle narrows the supervision of the Ward to include only that supervision required to manage his or her financial resources and personal liberties at a level no greater than is necessary to protect his or her health, safety and welfare, and his or her financial resources. In some extreme instances, the court must fully protect the Ward through the use of temporary protective services provided by a public or private agency.
If the Ward, or someone on behalf of the Ward is dissatisfied with the judgment or the manner in which it was obtained, a request for new trial may be filed within 60 days of the initial judgment. If the request is timely filed and successful, the court may set aside the original judgment and order a new hearing. If the result of the new hearing is the same as the result of the first, then the original judgment shall not be set aside, and the original judgment will stand.
Appeals thereafter, are filed with the applicable appellate court in Missouri. The appeal may be filed by the original petitioner who asked to be guardian/conservator, the person alleged to be incapacitated or disabled, any relative of the alleged incapacitated or disabled person, any reputable citizen of the county in which the original hearing took place, or by any attorney who previously represented any of the aforementioned parties. Regardless of who files the appeal, an attorney may be required. While the appeal is being adjudicated, the original judgment remains in effect unless the probate division of the circuit court that issued the original order stays the proceedings (unlikely if the Ward is in danger or if the Ward is a danger to others).
Once there exists a duly appointed guardian or conservator and no appeal of the judgment and order, documents entitled Letters of Guardianship or Conservatorship will be issued to the appointed parties. The Letters describe the guardian or conservator as appointed with or without limitations.
Assuming the Letters are without limitation, a guardian would then have a duty to protect the best interests, health, safety and welfare of the Ward. Those duties may include: (a) assuring the Ward is located in the least restrictive environment possible; (b) assuring the Ward receives the best medical care and other necessary services his or her finances will afford; (c) protect the Ward and ensure his or her health, safety and welfare; (d) provide consent on behalf of the Ward; and (e) provide any and all other duties required of the Ward and authorized by Missouri Revised Statute Section 475.120.
Assuming the Letters are without limitation, a conservator would then have the following general powers: (a) account for the Ward’s assets and estate value; (b) protect the assets and estate value inventoried; (c) invest money conservatively; (d) provide any and all other duties required of the Ward and authorized by Missouri Revised State Section 475.130; and (e) distribute the residual estate of the Ward to those entitled to them at the termination of the conservator’s duties.
A conservator may also do a variety of enumerated acts on behalf of a Ward that aren’t specifically detailed in his or her Letters. They include, but are not limited to: (a) take possession and control of the Ward’s real property, personal property, rents, income and any profits received from any investments or rental properties; (b) control all litigation for or against the Ward; (c) settle all claims up to the current amount allowed by law for or against the Ward; (d) sell personal property or real property owned by the Ward; (e) insure the Ward’s assets; and (f) contract for needed repairs to the Ward’s assets.
Missouri law requires that guardians and conservators make and file an annual report to the court with competent jurisdiction over the Ward on the anniversary date of the Letters. In summary, the guardian’s report provides a summary of the Ward’s status, how the guardian performed his or her duties during the last year, and the status of the Ward to confirm the Ward remains incapacitated. The conservator’s annual report provides a detailed summary of the Ward’s income and expenses, a settlement of all accounts, a list of the current assets of the Ward, and if any pending litigation remains unresolved.
As you can tell, the establishment of a guardianship or conservatorship is a serious matter and should involve experienced legal counsel. The duties of guardians and conservators can overlap and sometimes the same person is appointed for both roles but let there be no mistake – the two appointments are very different. Those wishing to become guardians and conservators should research the topic extensively and become aware of the responsibilities attached to each. But for those few who are appointed as guardian and/or conservator, the title is a humbling one and an opportunity to reward a loved one for the years of compassion and unconditional support they received.
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.