Explanation of Terms
Guardianship is the legal process of assisting a person, whose mental
disability has caused incompetence, in making decisions for herself/himself regarding
personal affairs (such as place of residence and medical care). When a person has been
adjudged by the Probate Court to be mentally incapacitated and incapable of making
informed decisions without the risk of harm, then a guardian may be appointed. A person
under guardianship is known as a ward.
Conservatorship deals only with the financial affairs of an individual. A conservator may be appointed by the Probate Court when an individual does not have the capacity to manage his or her financial affairs. A person under conservatorship is known as a protectee.
The Guardian/Conservator Appointment Process:
There are four types of mental disability and incapacitation that may cause the probate court to appoint a guardian and/or a conservator:
- Mental illness (such as schizophrenia and bi-polar illness)
- Mental retardation/developmental disabilities
- Brain injury or disease
- Diseases of the aging (such as Alzheimer's and other forms of dementia)
The above disabilities are not by themselves sufficient reasons to declare someone incompetent.
Competency has to do with a person's ability to make an informed decision without the risk of
harm that may be experienced as a result of inability to provide for him/herself or manage
Further, a conservator may be appointed when only a physical disability impairs a person's ability to handle his financial affairs.
Some incapacitated persons are able to make responsible decisions in some, but not all, areas of their lives. In these situations, guardianship and/or conservatorship may be limited by the court to only those areas in which the incapacitated person is unable to make responsible decisions.
Guardianship/conservatorship is the most restrictive form of protection given to mentally disabled and incapacitated individuals and should be used only when less restrictive measures are not adequate to meet their needs.
Step One in the appointment process is to petition the Probate Court. Any interested person (called a petitioner) may file for the appointment as guardian and/or conservator naming himself/herself or some other qualified person. The petition should be filed in the probate division of the circuit court in the county where the incapacitated person resides. While an attorney may not be needed for a person to file a petition, one will be necessary to present the petitioner's case at the court hearing. Important note: The Greene County Public Administrator does not serve as petitioner. Their involvement in the case begins after the Probate Court issues Letters of Appointment for the individual (i.e. after the hearing).
Notice is required to be served upon the alleged incapacitated person and he/she may retain the services of a private attorney or the court will appoint one to represent him. The attorney must visit the client prior to the scheduled hearing to exchange information that would safeguard and advance the interest of the client.
At the court hearing, the person filing the petition must present evidence to demonstrate why the individual needs a guardian and/or a conservator and to what degree that person is incapacitated or disabled. Medical evidence is required! Physicians can usually present a written medical report without having to appear in person.
The court costs of the proceeding are established by law. If a person is declared incapacitated, his estate will pay the costs. If the estate does not contain sufficient funds, the county is required to pay. If the person is not found to be incapacitated, the petitioner must pay the costs.
Before appointing a guardian, the court is required to consider the suitability of persons willing to serve in the following order:
- The incapacitated person's verbal choice
- Any eligible person named in writing when the incapacitated person was capable of making and communicating a choice (must have been written within five years prior to the hearing).
- An adult relative of the incapacitated person
- Other interested persons such as friends or the public administrator.
It is important to remember that guardianship/conservatorship is a relationship in which
one person places trust and confidence in the capability, integrity and fidelity of another.
The guardian/conservator holds the ward/protectee's rights in trust. This means that, when
under a full guardian/conservatorship, the ward/protectee cannot drive, marry, decide where
to live, decide his/her medical care, vote or enter into a legal contract.
Although, the guardian/conservator has an ethical obligation to allow the ward/protectee, whenever possible, to have a voice in the decision making process.
Brief Overview of the Statutory Responsibilities of the Guardian: (RSMo 475.120)
The guardian has the statutory duty to provide for the ward's care, treatment, habilitation, education, support and maintenance and the powers and duties shall include the following:
- Assuring that the ward resides in the best and least restrictive environment reasonably available
- Assuring that the ward receives medical care and other services that are needed
- Promoting and protecting the care, comfort, safety, health and welfare of the ward.
- Providing required consents on behalf of the ward, particularly medical (guardians must be on-call 24 hours a day, seven days a week)
A Status Of The Ward Report must be filed annually in the Probate Court concerning the care, placement and condition of the ward as well as the number and nature of personal contacts.
Brief Overview of the Responsibilities of the Conservator: (RSMo 475.130 - 475.270)
After Letters of Conservatorship are issued by the Probate Court, the conservator has 30 days
to take possession of the protectee's assets and to file an Inventory and Appraisement in the
court showing the assets and their value. If more time is needed, a request for an extension
may be filed. These figures begin the accounting cycle and then, annually, a Settlement must
be filed showing in detail all receipts and expenditures occurring during the preceding year.
Separate bank accounts are to be kept for each protectee and the property, income and bank accounts are not to be co-mingled with the personal property of the conservator.
The protectee's funds may only be spent for purposes authorized by statute or court order and the protectee's property may not be sold, traded, leased, mortgaged, transferred or discarded without court approval.
A conservator shall, under the supervision of the court, protect, preserve and manage the estate, invest it prudently and account for it faithfully. In protecting, preserving, managing and investing the estate, the conservator is under a duty to use the degree of care, skill and prudence which an ordinarily prudent man uses in managing property of, and conducting transactions on behalf of others. A conservator is under a duty to act in the interest of the protectee and to avoid conflicts of interest which impair his ability so to act.