Adult Guardianship

Answers by
St. Louis Adult
Guardianship Lawyer
Tim McCurdy

Adult Guardianship

Do you have a loved one struggling with dementia?  Is your special needs child about to turn 18?  You may need a guardianship to protect your loved one.  Following are answers to some of the questions you may have about obtaining guardianship for your loved one.

What is guardianship?

Guardianship is when a judge appoints someone to make decisions for someone else.  A guardian has the authority to decide where the person lives, what the person can and cannot do, and make medical decisions.

Prior to appointing a guardian, the judge must decide the person lacks the legal capacity to make decisions for him or herself.  When a guardianship is appointed, the judge declares the person “incapacitated.”  When this happens, the incapacitated person loses his or her legal rights to make decisions.  Because of this, appointing a guardian is one of the most significant things a judge can do.

The difference between guardianship and conservatorship.

In Missouri, decision-making responsibilities are divided between a guardian and a conservator.  A guardianship is over the “person” and a conservatorship manages the finances of the person.  For example, a guardian will choose a person’s doctor, and can authorize medical treatment.  The conservator handles the person’s bank account, and can use the person’s money to pay the medical bills from that treatment.

The legal standard for the appointment of a guardian and a conservator are very similar.  Normally, if you can prove someone needs a guardian you can also prove the person needs a conservator.  A person only needs a conservator, though, if that person has assets to manage.  For example, a conservatorship may be necessary if a disabled person owns property or has investments.  If the person does not have any assets, though, a conservatorship may not be necessary even if the person has monthly income.  For example, often a disabled person’s only income is from some form of government benefit, such as social security benefits.  Many government benefits allow for the appointment of a “representative payee” who is authorized to receive the monthly benefit without a conservatorship.  In those cases, a conservatorship may not be necessary because the person never receives the money to manage.

Although the judge will appoint a guardian and a conservator separately, one person often serves both roles.  You do not need to file separate causes of action to be appointed both a guardian and a conservator.

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When is a guardianship or conservatorship necessary?

A guardian will be appointed when a person is found to be “incapacitated.”  Similarly, a conservatorship will be entered when a person is “disabled.”  Incapacity and disability are legal definitions to say a person can no longer manage his or her affairs.

There are any number of scenarios that could require a guardianship and/or a conservatorship.  Someone who is struggling with dementia may need a guardianship to make medical decisions and get the person appropriate care.  Similarly, someone struggling with dementia can be subject to financial exploitation.  A conservatorship may be necessary to protect the person’s finances from abuse.

A guardianship may also be necessary for someone who is born with a disability who turns 18.  The child’s parents are normally able to manage the child’s affairs during childhood.  Legally, though, once the child turns 18 the child becomes an adult even if the child lacks capacity.  When the child turns 18, the parents may need to be appointed guardian even though little has changed with the child’s circumstances.

What is "incapacity" and "disability"?

A guardianship and a conservatorship can be entered when the person lacks the ability to manage his or her affairs.  In Missouri, the court apply slightly different standards to decide when a guardianship and a conservatorship are necessary.

A guardianship will be appointed when the person is found to be “incapacitated.”  A person is incapacitated if he or she lacks the physical, mental, or cognitive ability to make decisions about food, clothing, shelter, safety, or other care.  The person’s incapacity must be serious enough that, without a guardianship, serious physical injury, illness, or disease is likely to occur.

A conservatorship will be entered if the person is found to be “disabled.”  A person is disabled if the person’s physical, mental, or cognitive condition prevents the person from managing his or her financial resources.  The standard for disability for conservatorship is like the standard for incapacity for guardianship.  The main difference is the conservatorship focuses solely on the person’s finances.

How do I get guardianship?

Appointing a guardian requires a finding by the judge that the person lacks the legal capacity to make decisions for him or herself.  Next to sending someone to prison, entering a guardianship is one of the most significant restrictions on a person’s individual rights a judge can issue.  Because a guardianship is so significant, there are many protections in place to protect the rights of individuals before a guardianship will be entered.  To obtain guardianship, you must file a petition in the probate court stating why you believe a guardianship is necessary, and who should be appointed guardian.  Guardianship and conservatorship will only be entered after a court hearing to decide if the person is incapacitated and/or disabled.

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Who can be appointed guardian of an adult?

When deciding to pursue a guardianship, you should consider who will be appointed as the guardian.  Just because you asked the court to appoint a guardian does not mean you will be the one appointed.  The judge is required to follow an order of priority when appointing a guardian.  The order of priority is designed to give preference first to the wishes of the person (if known).  Next, preference is given to family members serving as the guardian.  When appointing a guardian and/or a conservator, the court is required to follow the following order of priority:

  1. Is the incapacitated able to make a “reasonable” choice about who he or she wants as a guardian?;  If NO, then,
  2. Before the person became incapacitated, did he or she nominate a guardian in a power of attorney?;  If NO, then,
  3. Does the person have a spouse, parents, adult children, adult brothers and sisters or other close adult relatives who could serve as a guardian?;  If NO, then,
  4. Did a spouse or relative nominate someone in their will to serve as a guardian for the incapacitated person?; If NO, then
  5. The Public Administrator or other organization willing and able to serve as a guardian.

The court will still decide whether a person can serve as a guardian.  If the order of priority is not followed, though, the judge will need to state a reason why a person is not a suitable guardian or conservator.

How does a Guardianship Case Work?

A guardianship case begins with the filing of the guardianship “packet.”  You must file a petition stating why a guardianship and/or conservatorship is needed, and who you want the court to appoint.  You are also required to identify potential witnesses, and provide financial information for the person who needs a guardian.  Once you have provided complete information to the court, a hearing will be set to decide if a guardianship is necessary.  The guardianship petition must be served on the person, along with notice of the hearing.

The court will appoint a guardian ad litem to represent the interests of the person.  The guardian ad litem has the right to obtain medical records and financial information for the person.  The guardian ad litem will make recommendations to the court about whether a guardianship should be entered, and who should be appointed.

At the hearing, the person who filed the petition (the “petitioner”) has the burden of proving that the person (the “respondent”) lacks the ability to manage his or her affairs.  This may involve calling witnesses, submitting affidavits and documents, or both.  The judge will decide whether a guardianship and/or conservatorship is necessary.  The judge will also decide who should be appointed.  Finally, the court will decide the scope of the powers needed by the guardian and/or conservator to protect the person.

What do I need to start the process?

You will need a lot of information to complete the guardianship packet.  You need to provide names, dates of birth, and Social Security numbers for the parties, if known.  You are required to identify any “interested parties” he may have an interest in the proceedings.  You will also need to identify the assets of the person.

With some exceptions, you must submit to a background check to be appointed guardian.  If a conservatorship is sought, you may also be required to provide your credit history.

A conservatorship will most likely require posting a bond.  The amount (and the cost) of the bond will be tied to the value of the assets owned by the person who needs a conservator.

Filing the guardianship packet requires payment of a filing fee.  The amount of the filing fee can vary significantly depending on the county where you file for guardianship.  You are also required to pay a fee for the sheriff to serve the petition on the person who needs a guardian.

Finally, and most importantly, you will need some form of medical evidence that the person cannot manage his or her own affairs.  This is often done through “Physician’s Interrogatories.”

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Physician’s Interrogatories

“Physician’s Interrogatories” are a form of affidavit to be completed by a medical provider.  Depending on the person’s type of disability, these will often be provided by a doctor or a psychiatrist.  Ideally, the person’s treating physician or psychiatrist will complete the Physician’s Interrogatories.  To complete the forms, the doctor or psychiatrist must have seen the person within a reasonable amount of time.

Physician’s Interrogatories can be used to present medical evidence without the need for a doctor or psychiatrist to appear in person at court.  This can make it easier for you to obtain the necessary medical evidence to obtain guardianship.  The Physician’s Interrogatories are designed to ask the same questions of the doctor or psychiatrist that would be asked in court.

Sometimes you cannot obtain Physician’s Interrogatories.  This can happen when a guardianship is contested.  This can also happen when the person has not been seen by a physician or psychiatrist for some time.  If this happens, the court can order a mental or physical examination of the person as part of the guardianship process.

Where do I file for guardianship?

A guardianship petition is filed in the probate court.  The probate court is a specialized court that handles guardianship cases and decedent estates.  You are required to file the guardianship petition in the probate court in the county where the person who needs a guardianship lives.  The guardianship petition is filed in the county where the person lives, even if that is different than the county where the potential guardian lives.

What happens at the guardianship hearing?

Once the court confirms you have provided all the necessary information, the case is set for a hearing.  Service of the petition on the respondent must be completed prior to the hearing.  Guardianship hearings are normally “closed,” meaning they are not held in open court.  Only those individuals directly involved with the hearing will be allowed in the courtroom.  You and your attorney will appear before the judge.  The court appointed guardian ad litem will be there as well.  The person who needs a guardianship has the right to be present.  Depending on the nature of the person’s disability, the guardian ad litem can waive the person’s right to appear.

The judge will identify the case and ask everyone to identify themselves.  As the person filing the petition, you will then go next.  You will have the opportunity to present evidence to support the petition for guardianship.  This will normally include offering into evidence the Physician’s Interrogatories.  As the petitioner, you will normally be asked to testify at the hearing.  Your attorney will ask you questions to show why a guardianship is necessary.  The guardian ad litem can also ask you questions.  The judge may have questions for you as well.  If necessary, additional witnesses can be called to support the petition.

Interested parties have a right to appear at the hearing to challenge the petition.  If this happens, they will have the opportunity to present evidence as well.  The guardian ad litem will report to the judge.  The guardian ad litem will make a recommendation regarding whether a guardianship is necessary.  The guardian ad litem will also make a recommendation on who should be appointed guardian.

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Rights of the respondent.

Granting a guardianship requires the court declaring someone to be incapacitated and/or disabled.  Declaring someone incapacitated takes away the person’s legal rights to make decisions for themselves.  Individuals have constitutional rights to protect against a guardianship being entered without “due process.”  Those rights include the right to be represented by an attorney, and to have a jury trial.  The person has the right to present evidence and question witnesses.  The person can also appeal from a judgment of incapacity.

What happens after the guardianship hearing?

If no one contests the proceeding and the need for a guardianship is clear, the judge may rule from the bench granting the petition.  If the issues are more complex, or if there is a dispute, the court may wait to issue a ruling.

Following a successful hearing, the court will issue a judgment.  The judgment will declare the person incapacitated and/or disabled, and appoint a guardian and/or conservator.  Once the judgment is entered, the court clerk will issue letters of guardianship.  The letters of guardianship will provide notice that you have been appointed as the guardian and/or conservator for the person.

What are a guardian and conservator's powers?

The guardian and/or conservator’s powers will be stated in the letters of appointment.  The power of the guardian can be “full” or “limited.”  In a limited guardianship, the person is still able to do some things and make some decisions for him or herself.  The letter of appointment will identify what the guardian has the power to do.

In a “full” guardianship, the guardian is responsible for the person (known as the “ward”).  The guardian can decide which doctors see the person, and authorize medical treatment.  The guardian can decide where the person lives, and this can include placement in a nursing home or similar facility.  The guardian is responsible for looking out for the person’s support and maintenance.  This can include authorizing services for the person.

A guardian is not required to use his or her own financial resources to support the ward.  The guardian can seek public assistance benefits for the ward if the person does not have enough funds to provide for him or herself.

A conservator has the authority to conduct financial transactions with the person’s assets.  Depending on the type of transaction, the conservator may need to obtain court approval first.

The powers of the guardian have two significant limitations.  First, the guardian must always act in the “best interest of the ward.”  As the guardian, you are standing in the shoes of the ward.  As such, you must make decisions for the person that are in his or her best interests.  As a guardian, you must avoid any conflicts of interest that would interfere with your ability to make decisions in the “best interests of the ward.”  For example, when deciding where the person will live you must choose a location that is in his or her best interest.  This may not necessarily be the location that is the most convenient for you.

What is the "least restrictive environment"?

Second, the guardian must make certain the person lives in the “least restrictive alternative” reasonably available.  The guardian has the authority to decide where a person will live.  Ultimately, the guardian must decide on a placement that is in the best interest of the person.  In doing so, the guardian should place the person in the environment with the fewest possible restrictions on the person’s personal liberty and rights.  This can certainly mean placement in a nursing home or similar facility.  Before such a placement, though, the guardian must consider if there are any alternatives that are less restrictive.

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What to do after appointment.

Once a guardianship is entered, the court is assuming responsibility for the individual.  The court appoints someone (the guardian) to protect the best interests of the person.  The court will continue to supervise the guardianship.  The court will make certain you are exercising your responsibilities appropriately.  To do this, you are required to provide an annual update to the court about the person.

The annual update to the court is intended to notify the court of any changes in the person’s circumstances.  You are required to notify the court of the person’s address.  If the person is not living with you, you must inform the court how often you visit the person.  You must also inform the court of the person’s condition, and how often the person sees the doctor.  You will tell the court if you believe the guardianship needs to continue.

How does a guardianship end?

If nothing changes, a guardianship can continue for as long as the person lives.  If the condition of the person improves, the court can remove the guardianship.  Unless everyone consents, the court will require a hearing to determine if the person is no longer incapacitated.  The court can also revoke letters of guardianship if the judge decides the guardian is not acting in the best interests of the person.  A guardian can resign, but the court must accept the resignation before the guardian is relieved of his or her duties.  The guardianship will also end if the person dies.  A conservatorship can also end when the assets of the person are exhausted.

Emergency Guardianship

The guardianship process can take months.  In a crisis, the court can hear a petition to appoint an emergency guardian ad litem.  An emergency proceeding is intended for extreme circumstances where the person has at immediate risk of harm without a guardian.  Likewise, an emergency conservator ad litem can be appointed if there is substantial risk of irreparable damage to the person’s property.  A petition for an emergency guardian ad litem must be heard within five business days of been filed.  If granted, the emergency guardian ad litem can only serve for periods of 90 days.

Alternatives to Guardianship

Guardianship proceedings can be costly and time-consuming.  The need for a guardianship may be avoided if the person was able to prepare an estate plan before he or she became incapacitated.  Many of the powers of a conservator can be exercised through a financial power of attorney.  Likewise, a healthcare power of attorney may enable you to make medical decisions for a person in extreme circumstances.

Unfortunately, there are limits to what can be done with a power of attorney, though.  For example, the person still has the legal right to make decisions.  This may prevent you from using the power of attorney to protect the person.  Sometimes there is simply no choice other than guardianship and conservatorship.

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St. Louis Adult Guardianship Lawyer Tim McCurdy

Guardianship requires a lawyer who will listen to you.  You need a partner to help guide you through the complex guardianship process.  Tim McCurdy will take the time to learn about your unique situation to help look for a solution.

LASHLY & BAER, P.C., is a mid-size Missouri law firm with deep roots in both Missouri and Illinois. As a full-service firm, we have developed a very diverse and extremely loyal base of local, regional and national clients.

Our lawyers work with clients ranging from individuals, large and small businesses, government agencies, hospitals and more.  Our practice areas include estate planning, elder law, probate, business and corporate law, education, government and public agencies, health care, labor and employment, real estate, professional liability, and transportation.

Our attorneys share a commitment to and a passion for our community, and we take pride in helping individuals, businesses and government entities across Missouri and Illinois.