Guardianships and conservatorships can be transformative legal tools for enabling friends and family members to care for loved ones who are not able to manage their own financial matters or meet their own needs for food, shelter, safety, and so on. Some individuals will struggle with financial management due to intellectual disabilities or other mental health problems; others will experience difficulties with the physical tasks necessary for adequate self-care. Many Missouri and Kansas adults may fall into both categories.
Courts will often adjust the level of control granted to a guardian or conservator based on the realistic degree of an adult’s impairment, with the preference being to preserve the individual’s right to self-determination as much as possible. Before any proper limits to a guardianship or conservatorship can be determined, however, the court must first find that such an intervention is needed. Often, a family member or a close friend will start that determination process by filing a petition.
One of the more interesting curiosities of probate and estate law in this country is that many of the principles remain broadly similar from state to state, but the terms used in describing the core concepts can differ considerably between jurisdictions. One example appears in the terminology Missouri uses for discussing guardianships and conservatorships.
Many states allow for two types of legal guardianship: guardian of the estate, which generally applies to the management of an individual’s personal finances, and guardian of the person, which most often covers medical decisions and care for the individual’s daily physical needs (such as food and hygiene).
In Missouri, this split is instead the difference between guardianship and conservatorship. A conservator appointed under Mo. Rev. Stat. § 475.010(3) takes responsibility for overseeing the management of a disabled or incapacitated individual’s financial concerns, and a guardian appointed under Mo. Rev. Stat. § 475.010(8) is responsible for the day-to-day physical needs of an individual whose disability or incapacity puts them at risk of “serious” illness, disease, or injury.
The definitions of some terms under Missouri law can also differ, to a greater or lesser extent, from those many people are used to applying in casual conversation. The legal meanings of disabled and incapacitated under Chapter 475 (which governs guardianships and conservatorships of adults in Missouri) are a good example of this phenomenon.
A person is considered disabled for the purposes of a Chapter 475 guardianship or conservatorship if he or she is unable for any reason to “receive and evaluate” important information about his or her own financial situation, or unable to effectively communicate reasonable decisions in response to that information. Under Mo. Rev. Stat. § 475.010(6), the difficulty or impasse affecting the individual has to be of “such an extent” that the person cannot effectively manage his or her own financial matters.
An incapacitated person is one who, even with the use of appropriate assistive technology, cannot effectively manage his/her own daily care needs (e.g., hygiene, food, housing). Similar to the provisions for defining disability, Mo. Rev. Stat. § 475.010(11) specifies that the severity of the incapacity must be such that the individual is at risk of “serious” physical illness, injury, or disease, if left to care for their own daily physical needs.
Although individuals preparing their documents for long-term care planning, and the families who may need to use those documents later, sometimes find the legal terminology complicated to navigate, in reality, Missouri and Kansas law provides a clearer alignment than is sometimes given in other jurisdictions. “Conservatorship” and “disabled” go together and pertain to the ability (or inability) to manage personal finances, and the individual who may be appointed to conduct that management on a disabled person’s behalf. “Guardianship and “incapacitated” are similarly paired; both relate to an individual’s ability or inability to take care of his or her own daily needs for food, shelter, physical safety, and so on, and a guardian is a person appointed by the court to provide the type of personal care that in some other states would fall under guardianship “of the person.”
Some individuals may need both a guardian and a conservator; others may need only one or the other. Missouri courts are generally careful to avoid limiting an individual’s autonomy any more than is necessary, so if you are preparing to seek guardianship or conservatorship over a Missouri adult for whom you are concerned, you may find it helpful to have a conversation with one of our Missouri estate planning and probate lawyers to discuss the criteria the state’s probate courts will apply in evaluating the need for such an appointment.
Missouri law does not require a person seeking guardianship over an adult to have a specific relationship established with that adult. Mo. Rev. Stat. 475.060(2) allows for “any person” to file a petition asking the court to appoint themselves or another individual as the guardian of the person named in the petition. On the other hand, filing the petition neither guarantees that a Missouri probate court will find the individual named in the petition to be incapacitated nor ensures that the person appointed guardian will be aligned with the petitioner’s preference.
In filing a petition to be named as guardian, or to have someone else appointed as guardian, for an adult, the petitioner will need to explain the “factual basis” for concluding that the individual named in the petition is unable to meet the “essential requirements” for managing his or her own day-to-day physical care needs. The explanation should include an itemization of specific incidents that led the petitioner to decide it was time to file the petition.
Many family members who seek guardianships for their loved ones will also seek to have another family member (often a sibling or an adult child) appointed as a co-guardian. Guardianship is a substantial responsibility that should not be placed on anyone as a surprise, and so the court will also require the petitioner in a guardianship proceeding to supply the signatures of any co-guardians whose appointment the petitioner is requesting.
In some instances, the need to protect an individual from the consequences of their own incapacity may be so urgent as to merit an emergency guardianship appointment. If the individual filing a petition to have a guardian of the person appointed for an adult wishes to have the court act on an emergency basis, the petitioner will need to explicitly state the request for emergency appointment of a guardian ad litem under Mo. Rev. Stat. 475.075(15).
Note that one possible advantage of this structure is that an emergency guardianship of this nature will automatically trigger the assignment of an attorney by the court to represent the interests of the incapacitated person. Particularly in cases where family members are divided over the appropriateness of seeking legal guardianship of a loved one, the appointment of a guardian ad litem can sometimes help to provide these concerned individuals with assurance that a responsible person is taking every care to advance the individual’s best interest.
Much of the process for establishing a conservatorship in Missouri adheres to the same procedural requirements as the process for obtaining a guardianship. In fact, the Missouri courts even provide a single form that may be used for both in cases where a petition is sought for both guardianship and conservatorship for the same legal adult. That said, because a conservatorship corresponds to impaired ability to manage financial matters and is more often associated with an intellectual disability or a decline in mental acuity due to age or injury, the evidence a petition may need to present to the court in order to demonstrate the necessity of the appointment will be somewhat different for a conservatorship vs. a guardianship. Missouri’s state courts also provide a list of filing requirements for each type of case, and a list of supporting documents (such as the Medical Affidavit attesting to the individual’s disability or incapacity) that the person petitioning for a conservatorship will need to supply.
Notably, prospective conservators must provide a full credit history; this requirement does not apply to potential guardians. The filing requirements can be complex, so many individuals seeking the appointment of a guardian and/or conservator for a Missouri adult prefer to work with an attorney familiar with the state’s probate system to ensure that all of the documents are managed appropriately.
If you are facing the decision to seek guardianship or conservatorship of an adult in Missouri, the extent of the authority the court may order will partly depend on the degree of the individual’s disability or incapacity. Because a number of conditions (both lifelong, such as significant intellectual disabilities, and progressive, such as certain forms of dementia) create challenges in both personal care and financial management, in many cases, you may find yourself needing to seek both guardianship and conservatorship in order to effectively care for a single person whom you love dearly. Discussing legal strategy and options for helping an incapacitated or disabled adult enjoy as much independence and autonomy as possible with an experienced Kansas City attorney may help you to gain a clearer understanding of your options and your loved one’s legal future. Contact The Binder Firm today to schedule a consultation.