A Primer on Legal Guardianship
What is legal guardianship?
Legal guardianship is a legal relationship in which a person, called the "guardian," has the legal responsibility for caring for another person, called the "ward," who, because of age or disability, is not able to exercise the rights necessary to care for himself or herself. Missouri state law provides for the appointment of the guardian over the person, the estate, or both of a potential ward who can be considered incompetent when a court determines such an appointment to be in his or her best interest. The purpose behind appointing such a guardian is to provide a means of protecting and caring for individuals who are unable to do so for themselves . Legal guardianship should not be confused with physical custody; a person may have physical custody or guardianship over a child without also being considered the legal guardian. Legal guardianship, for persons with developmental disabilities, is usually limited to when a ward is considered unable or not competent to manage his or her financial affairs or make medical decisions. However, parents who still have legal custody of their children have the ability to act on behalf of the child. A legal guardian has broad powers and duties over the person and/or estate of the ward within certain restrictions set out by statute.
Missouri Guardianship Statute
Missouri guardianship laws are set out in RSMo Chapter 475. Missouri law allows for the appointment of a guardian of the estate and/or a guardian of the person for an individual.
On March 27, 2017, Chapter 475 was amended to include several non-substantive changes. The biggest change was that the language identifying an "intellectually disabled" person was changed to "adult who is not capable of relating to and participating in social and interpersonal relationships in a manner appropriate to his or her health or well-being." This section appears codified in RSMo § 475.010(15)(b).
The procedure to seek a guardian for an individual with disabilities is set forth in RSMo Chapter 475. The process involves filing a petition with the court, appointment of a guardian ad litem and either an evaluation of the person or an examination by an expert. The continuum of disability spans those who are mentally competent but may need assistance making certain decisions to those who may be unresponsive and require more extensive support. Whether a guardian is sought charting the course of care and support for the individual should be discussed with an attorney who can advise what is necessary to meet that individual’s needs and passions.
Different Types of Guardianship
A Missouri guardianship over an adult with disabilities can take a few different forms, depending upon the needs and circumstances of the individual. The range of legal options available in Missouri include:
Full Guardianship. When the court appoints a full guardian of a person, it gives that person complete authority to make all health care decisions for the ward. A full guardian essentially takes the place of a parent when a child turns 18. Full guardianship should only be granted in serious cases when there is no less-restrictive solution available.
Limited Guardianship. A limited guardian of the person shares some decision-making responsibilities with the ward but retains the ability to make medical treatment decisions that the ward cannot make. A limited guardian of the person is responsible for the same decisions as a full guardian, but only as much as the court deems necessary.
Temporary Guardianship. A temporary guardian of the person has the same responsibilities as a limited guardian, but can only serve for a period of up to 60 days. The court can extend the period for another 60 days if it finds that it is in the best interest of the person to do so.
Guardianship of an Estate. A guardian of an estate is responsible only for managing the financial affairs of the person. This does not include personal, health care, or education decisions. The guardianship is terminated once the person can manage their own finances.
The authority given to guardians in Missouri may also be either general or special. A general guardian has full authority over the ward – similar to the authority of a parent over a child. Specific guardians are delegated only those powers the court specifically orders – without giving other powers or taking away any that the statute confers on them.
Who Can Become a Guardian
To become a legal guardian over an adult with disabilities, a petitioner—who could be a parent, family member or a third party stranger—must establish several criteria to be eligible. Important to note is that while the threshold to obtain a guardian poses some barriers to entry, once obtained, the threshold to lose or terminate the guardianship also poses some barriers, to ensure that a guardianship is not entered into prematurely or unnecessarily.
The questions to ask and answer are:
• Is the alleged disabled person competent to petition for a voluntary guardianship? If so, then they would enter into a guardian over the property (finances) and the person (medical and care matters) voluntarily, and the alleged disabled person’s consent would be pivotal, thereby eliminating the need for a trial;
• Is the petitioner an appropriate choice for guardianship? Is the petitioner unqualified for, or unable to handle, the day-to-day responsibilities of a legal guardian? Are there any conflicts of interest or personal animosities that would pose problems for the proposed guardianship?;
• Does the proposed guardianship have adequate funding and resources necessary to carry out the responsibilities of guardian, and is the petitioner able to judiciously manage the money for the benefit of the disabled person?;
• Is the disabled person incompetent by nature of a disability? In Missouri, there are several different ways in which one could be declared incompetent, to be appointed a guardian over the person and/or the property; and
• Is there a less restrictive means of guarding the alleged disabled person than a guardianship? There are several alternative means, such as a power of attorney, advance medical directive, and a limited guardianship.
How to Apply to Become a Guardian
We will first look at the necessary forms. The most common forms used to initiate guardianship proceedings are known as Forms 30. This form is available on the Missouri Courts website, under a section entitled "Forms for Adult Guardianships" which can be found here. Both Parts I and II of Form 30 must be completed for a guardianship petition. This form is exclusively for the application for a guardianship over an adult. Depending on the petitions for other guardianships, such as a minor or for limited guardianship, a different form number may apply. The purpose of each of the sections of Form 30 is explored in more detail below: Form 30 Part I – In part I of Form 30, the petitioner must identify the respondent, or person for whom guardianship is being sought. The nature of the respondent’s condition should also be disclosed, including the severity of the condition. For example, if the respondent suffers from Alzheimer’s disease, you should display a basic understanding of the condition. Additionally, contact information of the parties involved must be provided. This includes addresses and phone numbers for the caregiver, spouse, next of kind, or other close relatives of the respondent. Form 30 Part II – Part II of Form 30 specifies the reason guardianship is being sought. The form requires that the petitioner request what type of guardianship is being sought. This may be a full guardianship, limited guardianship, or a medical guardianship. Petitioner must show that the respondent is either presently unable to care for himself, and/or that on a long-term basis, it is likely that the respondent will be improperly cared for without the intervention of the Court. Once Form 30 has been completed and filed with the Court, the Court will schedule a hearing for the petition. If sufficient notice of this hearing is given to the respondent, they will be required to appear for the hearing. The judge will then decide whether to appoint a guardian or not.
Guardian Rights & Responsibilities
While the legal guardian retains wider powers than in other guardianship arrangements such as conservatorship, the legal guardian is still bound by certain restrictions. The guardianship may be limited to the care of the person or estate, the person’s rights as a citizen or resident may not be removed. Included among those rights protected from deprivation as a result of a guardianship are: the right to vote and run for public office, marry, enter into a civil union or domestic partnership, and apply for a marriage license with the County Recorder and; the right to make or revoke a will. The guardian must submit an annual report concerning the needs of the disabled adult and the care provided to the disabled adult. The guardian is legally required to inform the court and all interested parties immediately if the disabled adult moves , is admitted to a mental health facility, enters into a contract, gets married, or dies. The guardian is required to appear before the court at periodic hearings to review the care of the disabled adult. If the guardian does not appear before the court when required a new guardian can be appointed. The court may, for good cause, revoke the letters of guardianship and remove the guardian. A letters guardianship the authority of the guardian are suspended until the hearing is held and a judge of the probate division of the circuit court holds a hearing and makes a determination regarding the status of the disabled adult and the necessity of the guardianship.
Guardianship Alternatives
Alternatives to Legal Guardianship for Adults with Disabilities in Missouri
While legal guardianship is the most common arrangement for substituted decision-making for adults with disabilities, it is not the only option. Other alternatives to legal guardianship may be more appropriate for some individuals. These alternatives can have the advantages of providing certain rights that would otherwise be taken away from the ward if a legal guardian were appointed. For instance, legal guardianship can eliminate the right to marry, vote, obtain a driver’s license, or contract, as the guardian has full power over all of the ward’s decisions, both personal and financial.
One alternative to legal guardianship is the power of attorney. Under Missouri law, a principal (or individual granting the power) can give a very broad or very narrow power of attorney to their attorney-in-fact. If very narrowly tailored, the holder of the power of attorney can only make the financial decisions for the individual in very specific circumstances. For example, an individual can sign a durable power of attorney for health care, which allows the holder to make health care decisions on behalf of the individual when they are unable to do so. This can be very useful if the individual is hospitalized and cannot make those decisions or is living away from family members and does not have access to anyone who would have been able to make those decisions.
A durable power of attorney can be granted for financial or personal matters. The principal can state that this power can be effective immediately, or only effective at a future date or upon the occurrence of a future event such as incapacity.
Other alternatives to legal guardianship if the individual is still competent, with substantial advising on a range of issues, include a representative payee or supported decision-making.
A representative payee is very similar to a power of attorney, in that this individual is only given the power to control the finances of a person who has deadlines to meet if those payments are not made, like Social Security, rent, medical payments, etc. Typically, the Social Security Administration appoints this person.
Put together a list of the issues of concern specific to your loved one. List who is currently handling those issues. Consider whether you would feel comfortable giving up all of the rights that existed previously to someone else under a legal guardianship, even if it means that the person will have to be completely hands-off on these particular issues. For example, the person may feel very strongly about who they marry, but would rather legally renounce the right to vote and give that right to someone else fully, even if that means giving up the right to be an independent adult in many way as well. Missouri law makes provisions for a "partial guardianship" to address only certain areas of concern, but the practicality of it working out in reality depends on the family circumstances.
If a less drastic approach is preferred, weigh each of the alternatives that can work in Missouri here, and you may be able to find a solution that works for your situation.
Ending Guardianship or Modifying it
A legal guardianship for an adult with a disability can sometimes be terminated or modified. Similar to the process of initiating a guardianship, the incapacitated individual may make a motion (or request) for the termination of the guardianship and/or appointment of a successor guardian. This motion must be served on the current guardian as well as the alleged incapacitated individual.
Other individuals have the right to file a petition to terminate or modify the guardianship: 1) the person who was subject to the guardianship proceedings (the alleged incapacitated person); 2) the guardian of the estate (the financial person); 3) any person interested in his welfare; 4) the director of the Division of Mental Health; and 5) any person who shall have been appointed his "guardianship" representative by any governmental agency.
The New Missouri Statute makes it clear that the person under guardianship is the most important party to terminate a guardianship. While others have the right to petition the Court, the burden is placed on the Court to be convinced that the person under guardianship does not need a guardian.
There are many circumstances wherein the guardian, themselves, may file a petition with the Court to terminate or modify the guardianship. If they feel that the person under guardianship is no longer incapacitated or does not need a guardianship, the guardian has the right to petition the Court to terminate the guardianship.
Either the person under guardianship or the person or persons who they wish to act as their agent under durable powers of attorney may wish to terminate the guardianship as well. A durable power of attorney is a document that allows someone else to handle your affairs in the event you become incapacitated. Missouri Law requires the person signing the power of attorney to be legally competent at the time the document is signed.
Obtaining Legal Help
Despite the convenience of the Missouri guardianship court website, unless you have a law degree, you will be amazed at the complexity involved in certain cases. In addition, no law or statute will ever tell you how to handle each step or how to tell a judge how you have been harmed by another party. Navigating the guardianship system to the satisfaction of a Missouri probate judge is not something that you should attempt on your own. You can and you might be able to save a couple of dollars on the front end, but in the end you save yourself a lot of grief and headaches if you just hire an attorney from the start .
It is the attorney’s job to know the law, ask the right questions, and advise a client on the best course of action based on factual circumstances. An attorney has an ethical obligation to look out for your best interests, which often may be hard for a family member to determine from personal experience. At Schumacher & Saurio, we have handled dozens of guardianships over the years on both sides of the aisle. We are familiar with the judges, court clerks, and attorneys in the local probate courts and have relationships built on friendship and respect that will help keep your case moving along.