Missouri Guardianship and Conservatorship

Information provided on this page is for educational use only. Accessing this page does not give rise to an attorney-client relationship, and the information provided should not be regarded as legal advice. Laws of the State of Missouri are subject to change, and there is no warranty, express or implied, that the information included on this page is still accurate at the time of access. Please consult a licensed Attorney to discuss the specifics of any legal matter. Attorneys at Cline, Braddock & Basinger can be reached at (573) 443-6244

Introduction

There are many reasons why it may be necessary to seek guardianship or conservatorship for a relative. Perhaps, an elderly parent has suffered from mental decline and is no longer able to make decisions for his or her care. Alternatively, a minor child’s  parents may be deceased or unable to care for him or her. Decisions about seeking guardianship/conservatorship can be difficult, but our attorneys are standing by to assist you.

Difference Between Guardian and Conservator

We are often asked about the difference between a Guardian and a Conservator. These are two different roles, but a single person can serve as both Guardian and Conservator.

Guardian is a person appointed by a court on behalf of a minor or incapacitated adult to make decisions concerning the minor or incapacitated adult’s care, treatment, habilitation, education, support, and maintenance. The responsibilities include:

• Assuring that the minor or incapacitated adult lives in the best and least restrictive environment which is reasonably available.
• Assuring that the minor or incapacitated adult receives medical care and other services that are needed.
• Promoting and protecting the care, comfort, safety, health, and welfare of the minor or incapacitated adult.
• Providing required consents (such as for medical care) on behalf of the minor or incapacitated adult.
• For minors, assuring that his or her education needs are met.
• Report yearly to the court concerning any changes to the minor or incapacitated adult’s wellbeing

Conservator is a person appointed by a court on behalf of a minor or disabled adult to manage the assets and finances of a the minor or disabled adult. A Conservator must take possession of the minor or disabled adult’s property (to the extent authorized by the court) and make reasonable efforts to:

• Find the income, assets, and liabilities of the minor or disabled adult.
• Identify the needs and preferences of the minor or disabled adult.
• Work with the Guardian (if it is a different person) and others close with the minor or disabled adult.
• Prepare a plan for management of the minor or disabled adults assets.
• Provide oversight and management of any income and assets of the minor or disabled adult. This may include paying for housing, medical care, education, and general wellbeing, but such payments are made from the minor or disabled adult’s income or assets and not from the Conservator’s personal income or assets.
• Report yearly to the court concerning the income and expenses of the minor or disabled adult

Persons Requiring Guardians or Conservators

Guardian for Minor: A person is considered a minor is he or she is under eighteen (18) years of age. A minor requires a court appointed guardian is his or her parents are both deceased, or adjudged unwilling, unable, or unfit to perform the roles of a natural parent.

Conservator for Minor: A person is considered a minor if he or she is under eighteen (18) years of age. Minors generally require a Conservator if the minor is to receive a sum greater than $10,000.00 (perhaps by inheritance or court settlement). In such circumstances the Conservator would hold the money (subject to court supervision) for the minor until he or she turned eighteen (18). If the minor’s parents are living and willing and able to serve, they are often the person appointed as Conservator in such circumstances.

Incapacitated Adult (requiring Guardian): An incapacitated adult is a person who who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person, even with appropriate services and assistive technology, lacks capacity to manage the person’s essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

Disabled Adult (requiring Conservator):  A disabled adult is a person who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage the person’s financial resources.

Who May Serve as Guardian or Conservator

Generally, any person may Petition a Court to be named as Guardian or Conservator. However, if there are multiple persons desiring to be named as Guardian and/or Conservator over a person then there is an order of priority.

For a Minor the priority order for applicants is as follows:

1. The parent or parents of the minor, unless adjudged unwilling, unfit, or unable;
2. If any minor over the age of fourteen years has no qualified parent living, a person nominated by the minor, unless the court finds appointment contrary to the best interests of the minor;
3. Where both parents of a minor are dead, any person appointed by the will of the last surviving parent, who has not been adjudged unfit or incompetent for the duties of guardian or conservator.
4. If no appointment is made under preceding priorities, then the most suitable person who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement.

For an incapacitated or disabled adult the priority order for applicants is as follows:

1. If the incapacitated or disabled person is, at the time of the hearing, able to make and communicate a reasonable choice, any eligible person nominated by the person;
2. Any eligible person nominated in a durable power of attorney executed by the incapacitated or disabled person, or in an instrument in writing signed by the incapacitated or disabled person and by two witnesses who signed at the incapacitated or disabled person’s request, before the inception of the person’s incapacity or disability;
3. The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person;
4. Any other eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a duly probated will of such a spouse or relative.

Process to Establish Guardian or Conservator

In order to be appointed as a Guardian and/or Conservator the process is started by filing a Petition with the Probate Court for the County in which minor or incapacitated/disabled adult is domiciled, or in the case of an emergency, filing a Petition with the Probate Court for the County in which the minor or incapacitated/disabled adult is presently found.

For a Guardianship of a Minor the Petition should state:

1. The name, age, domicile, actual place of residence and post office address of the minor  if known and if any of these facts is unknown, the efforts made to ascertain that fact;
2. The estimated value of the minor  real and personal property, and the location and value of any real property owned by the minor outside of this state;
3. If the minor has no domicile or place of residence in this state, the county in which the property or major part thereof of the minor is located;
4. The name and address of the parents of the minor and whether they are living or dead;
5. The name and address of the spouse, and the names, ages and addresses of all living children of the minor;
6. The name and address of the person having custody of the person of the minor or who claims to have custody of the person of the minor;
7. The name and address of any guardian of the person or conservator of the estate of the minor appointed in this or any other state;
8. If appointment is sought for a natural person, other than the public administrator, the names and addresses of wards and disabled persons for whom such person is already guardian or conservator;
9. The name and address of the trustees and the purpose of any trust of which the minor is a qualified beneficiary;
10. The reasons why the appointment of a guardian is sought;
11. A petition for the appointment of a guardian of a minor may be filed for the sole and specific purpose of school registration or medical insurance coverage.  Such a petition shall clearly set out this limited request and shall not be combined with a petition for conservatorship;
12. If the petitioner requests the appointment of co-guardians, a statement of the reasons why such appointment is sought and whether the petitioner requests that the co-guardians, if appointed, may act independently or whether they may act only together or only together with regard to specified matters;
13. That written consent has been obtained from any person, including a public administrator, who is to be appointed as a co-guardian; and
14. Whether the petitioner knows of any other court having jurisdiction over the minor and the name of the court, if known.

For Guardianship and/or Conservatorship of an Incapacitated/Disabled Adult the Petition should state:

1.  If known, the name, age, domicile, actual place of residence, and post office address of the alleged incapacitated person, and for the period of three years before the filing of the petition, the most recent addresses, up to three, at which the alleged incapacitated person lived prior to the most recent address, and if any of these facts is unknown, the efforts made to ascertain that fact.  In the case of a petition filed by a public official in his or her official capacity, the information required by this subdivision need only be supplied to the extent it is reasonably available to the petitioner;
2. The estimated value of the alleged incapacitated person’s real and personal property, and the location and value of any real property owned by the alleged incapacitated person outside of this state;
3. If the alleged incapacitated person has no domicile or place of residence in this state, the county in which the property or major part thereof of the alleged incapacitated person is located;
4. The name and address of the parents of the alleged incapacitated person and whether they are living or dead;
5. The name and address of the spouse, the names, ages, and addresses of all living children of the alleged incapacitated person, the names and addresses of the alleged incapacitated person’s closest known relatives, and the names and relationship, if known, of any adults living with the alleged incapacitated person; if no spouse, adult child, or parent is listed, the names and addresses of the siblings and children of deceased siblings of the alleged incapacitated person; the name and address of any agent appointed by the alleged incapacitated person in any durable power of attorney, and of the presently acting trustees of any trust of which the alleged incapacitated person is the grantor or is a qualified beneficiary or is or was the trustee or cotrustee and the purpose of the power of attorney or trust;
6. The name and address of the person having custody of the person of the alleged incapacitated person;
7. The name and address of any guardian of the person or conservator of the estate of the alleged incapacitated person appointed in this or any other state;
8. If appointment is sought for a natural person, other than the public administrator, the names and addresses of wards and protectees for whom such person is already guardian or conservator;
9. The factual basis for the petitioner’s conclusion that the person for whom guardianship is sought is unable or partially unable by reason of some specified physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks capacity to meet essential requirements for food, clothing, shelter, safety, or other care such that serious physical injury, illness, or disease is likely to occur;
10. The reasons, incidents, and specific behaviors demonstrating why the appointment of a guardian or limited guardian is sought;
11. If the petitioner suggests the appointment of co-guardians, a statement of the reasons why such appointment is sought and whether the petitioner suggests that the co-guardians, if appointed, may act independently or whether they may act only together or only together with regard to specified matters; and
12. Written consent has been obtained from any person, including a public administrator, who is to be appointed as a co-guardian.

Generally, for a Petition alleging that an adult is Incapacitated or Disabled the Court will also require a medical opinion establishing such incapacity and/or disability. Usually this is established by an affidavit signed by a doctor or physician providing treatment to the incapacitated or disabled adult.

Once the Petition is filed the Court will schedule a future hearing date. A copy of the Petition together with the Court Notice must then be served, depending on the circumstance, either upon the minor’s natural parents or upon the incapacitated/disabled adult. The Court will also appoint an attorney for the minor or for the incapacitated/disabled adult. This attorney will act independently to meet with the minor or incapacitated/disabled adult and will make a report to the Court concerning what the attorney believes would serve the minor or incapacitated/disabled adult’s best interest.

At the hearing the Court will determine whether the appointment of a Guardian or Conservator is necessary and appropriate. If so, the Court will issue Letters of Guardianship and/or Letters of Conservatorship. This is the document which authorizes the applicant to act thereafter as Guardian or Conservator.

Emergency Guardian or Emergency Conservator

The process described above can, at times, be slow. If there is an exists an emergency that presents a substantial risk that serious physical harm will occur to the minor or incapacitated/disabled adult or irreparable damage will occur to the minor or incapacitated/disabled adult’s property because of their failure or inability to provide for their essential human needs or to protect their property, the court may order an emergency hearing to occur within five (5) days. At such emergency hearing, the court may appoint an emergency guardian and/or emergency conservatory to serve for up to 90 days. The request for emergency guardianship and/or emergency conservatorship should be made at the time the initial Petition is filed.

Conclusion

Guardianship or Conservatorship can seem daunting, but our attorneys are standing by to guide you through this process.  Please do not hesitate to contact Cline, Braddock & Basinger (573.443.6244) for a free consultation to discuss your specific situation.