Although the term “guardian” is sometimes loosely used to refer to a person who has both physical custody of another person and control over that person’s property, these are actually separate and distinct roles under Missouri law:
- In Missouri a “guardian” is a person appointed by the Probate Division to have the physical care and custody of a minor or of an adult who has been legally determined to be incapacitated. An “incapacitated person” is defined as one who is “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he [or she] 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.”
- In contrast, under Missouri law, a “conservator” is a person (or sometimes a corporation, such as a bank or trust company) appointed by the Probate Division to manage the property of a minor or of an adult who has been found to be disabled. A “disabled person” is defined as one who is “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his [or her] financial resources.”
Depending on the circumstances, a guardian or conservator or both could be appointed. If both are appointed, often the same person serves in both roles.
The appointment of a guardian and/or conservator may become necessary for a minor (a child under 18) in two common situations:
- The child is orphaned.
- The child receives substantial money or property, such as by inheritance or through settlement of an injury claim. (In this situation, one or both of the child’s parents usually are appointed.)
The most common situations in which a guardian and/or conservator must be appointed for an adult are:
- The adult is mentally ill or developmentally handicapped.
- Advancing age has caused the adult to become physically or mentally disabled and/or incapacitated.
The use of appropriate estate-using techniques discussed in other pages sometimes can avoid the need for a guardianship or conservatorship. This is desirable if possible because of the time, expense and continuing court supervision involved in guardianships and conservatorships. Techniques that may help are:
- Creation of a trust, allowing the trustee to manage financial matters.
- Execution of a durable power of attorney, allowing the attorney-in-fact (agent) to act for the person signing the document.
- Signature of a living will and limited durable power of attorney for health care, providing guidance on health care decisions and allowing someone else to make those decisions.
If a guardianship and/or conservatorship becomes necessary, Scott Law Firm can assist in obtaining the necessary orders from the Probate Division to establish the appropriate arrangements and help meet continuing court requirements.
First priority for appointment as guardians and conservators of minors’ estates goes to their parents, but such an appointment usually is necessary only if the minor is receiving property from some source other than the parents, such as settlement of an injury claim or an inheritance. Parents are deemed by the law to be the natural guardians of their children and ordinarily do not have to be appointed as such by a court.
If a minor has no parents, then the court can appoint a guardian and/or conservator as necessary, and the minor can select the person if the minor is at least 14 years old. The court can also consider appointment of a person named in the will of the last parent to die as guardian and/or conservator. In any case, the person appointed by the court must be suitable and qualified. If the minor is under 14, or over 14 and has no preference, and if the last surviving parent failed to designate a guardian and conservator in a will, then the court will try to appoint the most suitable person, usually an adult brother or sister or other close adult relative willing to serve.
An adult incapacitated or disabled person may designate his or her own guardian and/or conservator if he or she is able to communicate a reasonable choice to the court. Also, any competent adult person can designate a suitable person to serve as guardian or conservator if done in writing and witnessed by at least two witnesses within five years before the hearing (frequently this is done in a durable power of attorney). If the incapacitated or disabled adult does not have a preference, or is unable to express a reasonable preference, the court will consider appointing as guardian and/or conservative, in order: The spouse, parents, adult children, adult brothers and sisters, or other close adult relatives. If there are no relatives willing or able to serve, the court has the power to appoint any suitable person (such as a close friend). If all else fails, the court can appoint the Public Administrator, an elected county official whose job is to handle such matters when no one else is available.
Any person who knows that another person may require a guardian and/or conservator can commence the process by filing an application in the Probate Division in the county where the minor or alleged incapacitated or disabled adult resides. The person alleged to need a guardian and/or conservator is called the respondent. Both the petitioner and respondent must be represented in court by an attorney. The court will appoint an attorney for the respondent if the respondent does not have an attorney. After a hearing, the court will decide whether a guardian and/or conservator is needed, and, if so, make the appointment.
The law calls a person for whom a guardian has been appointed a “ward.” Guardians must always act in the best interests of the ward. The guardian of the minor is responsible for the minor’s custody and control and must make decisions about the minor’s education, support and maintenance. The guardian of an incapacitated person is responsible for the physical custody of the ward and must make decisions about the ward’s care, treatment, shelter, education, support and maintenance. Guardians may give legal consent for medical treatment of the ward. Guardians must report to the court at least annually on the ward’s physical condition.
A person for whom a conservator has been appointed is called a “protectee.” A conservator is responsible for protecting and managing the protectee’s financial assets. The conservator must properly and prudently invest the protectee’s assets, apply those assets to the protectee’s care and maintenance, and account to the Probate Division for all monies received and expended on behalf of the protectee. Most expenditures on behalf of the protectee must be authorized by prior court order. Because of the complications involved in a conservatorship estate, most conservators find it necessary to work closely with an attorney to administer the protectee’s estate in accordance with the law, no matter how large or small the estate.
Guardians and conservators are not personally liable for the debts and obligations of a ward or protectee, so long as they make it clear that they are acting on behalf of the ward or protectee in a representative capacity. However, any unauthorized use or misappropriation of the ward/protectee’s property by either the guardian or the conservator will render them liable and result in their removal.
If a minor is not otherwise incapacitated or disabled, a conservatorship and guardianship for a minor ends when the minor turns 18 or dies.
A guardianship for an adult ward terminates only when the Probate Division finds that the ward has died or is no longer incapacitated.
A conservatorship for an adult protectee terminates when:
- The protectee dies.
- The Probate Division finds that the protectee is no longer disabled.
- The assets of the protectee are completely exhausted.
When a guardianship and/or conservatorship is terminated, certain information must be provided to the Probate Division before the guardian and/or conservator will be relieved of further duties.
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