How do I get guardianship?

How do I get guardianship?

Guardianship will only be entered for an individual who is found to be incapacitated.  Proving “incapacity” is a high standard.  Normally, an individual should be able to make his or her own decisions even when those might not be great decisions.  Appointing a guardian is the court saying the person can no longer make decisions for him or herself. 

The court does not do this lightly.  Instead the court will only appoint a guardian if the court is saying that someone lacks the ability to make decisions for him or herself so much so that someone else should do it.  Courts will do that after a hearing when the court is satisfied that the individual is incapacitated.

NOTE:  “Incapacity” only applies to guardianship of an adult (someone over 18).  You do not need to show a child is “incapacitated” because the child’s age alone can be grounds to appoint a guardian if the parents cannot care for the child. 

Physical, mental, or cognitive condition

First, an incapacitated person is someone who has a “physical, mental, or cognitive condition.”  This could be a physical impairment that prevents a person from living independently.  A person can have a mental condition, like schizophrenia or a personality disorder.  A person could also have a cognitive condition, like dementia, Alzheimer’s, or a traumatic brain injury.  The definition is meant to be broad, and include any condition that impairs a person’s ability to receive and evaluate information or communicate decisions.

Severity of condition

Second, to be incapacitated the person’s physical, mental, or cognitive condition must be severe enough to render the person incapacitated.  Having a condition that limits a person is not enough – the condition must limit the person so much that he or she “lacks capacity to manage the person’s essential requirements for food, clothing, shelter, safety or other care.”  For example, can the person decide where to live, and live safely alone?  Can he or she decide where, when, and what to eat?  Can the person make medical decisions?  The opinion of a physician or psychiatrist will almost always be necessary to support a finding of incapacity.

Are there services that can help the person?

Third, the court will ask if there are any “services and assistive technology” that could be used to help the person avoid the need for a guardianship.  For example, safety concerns about a person living at home alone could be helped with a home monitoring system.  Are there any speech or hearing devices that can help the person communicate his or her wishes?  The court will look for these to make certain that a guardianship is the only option.

Is serious physical injury likely to occur?

Fourth and finally, the court will ask if the person’s physical, mental, and/or cognitive impairment is so severe that “serious physical injury, illness, or disease is likely to occur” without a guardianship.  Remember that by creating a guardianship, the court is taking away a person’s ability to make decisions for him or herself.  The standard is not if this would be in the best interests of the person – the standard is if serious physical injury, illness, or disease is likely to occur.  The court applies this high standard to make sure guardianship is the only option.

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How to Prove "incapacity"

An adult guardianship and/or conservatorship will require evidence the person is “incapacitated” (for guardianship) or “disabled” (for conservatorship).  This will almost always require evidence from a physician or a psychiatrist.  Evidence of capacity can either be amended through live testimony, or, more often, with the submission of “physician’s interrogatories.”

What are Physician's Interrogatories?

Some courts in Missouri have developed standardized forms for guardianships.  These physician’s interrogatories identify the qualifications of the physician, the diagnosis of the physician, and the physician’s recommendation for guardianship.  If you are in a county that does not have standardized forms, you can use the forms that are provided by larger counties.  For example, St. Louis County, the City of St. Louis, and Jackson County (Kansas City) have standardized forms to be completed by the physician.

How to complete Physician's Interrogatories

You will need the cooperation of the person’s physician to complete the physician’s interrogatories.  This can often be done by coordinating with the doctor’s office.  Depending on the type of practice, they may be familiar with completing these forms.  To complete the interrogatories, the physician will need to have examined the person recently.  There is no hard and fast rule as to how recently the person must have been seen by the doctor, but within the past two months is preferable.  Some physicians will charge a fee to complete the paperwork.

What do the Physician's Interrogatories say?

  1. The physician must state his or her background, and qualifications to offer an opinion.
  2. Next, the physician should state when the person was last seen, and the diagnosis
  3. The physician should state he or she believes the person is incapacitated, and the reason
  4. Finally, the doctor will state the least restrictive environment for the person.

How are Physician's Interrogatories used?

You will need to file the physician’s interrogatories with the guardianship petition.  If you are unable to obtain the physician’s interrogatories before filing the petition you will need to provide an explanation to the court as to why you have not obtained them.  Once filed, the physician’s interrogatories will be used at the hearing as evidence of the person’s incapacity.  If there is no dispute, the physician’s interrogatories can be sufficient evidence to obtain the guardianship.

What about HIPAA?

A natural concern both for physicians and attorneys when seeking physician’s interrogatories is whether the physician can complete the interrogatories without violating the patient’s privacy rights under HIPAA.  Since the patient is incapacitated, by definition someone else will be asking the physician to provide medical information about the patient.  Fortunately, HIPAA recognizes an exception for disclosure of information as part of a judicial proceeding. 

For example, in both St. Louis County and the City of St. Louis the physician’s interrogatory forms contain instructions to the physician that he or she is authorized to provide this information as part of a guardianship proceeding.  If you are concerned this may be an issue (usually because someone might be contesting the guardianship) you have the option of seeking an order from the court first, although this will lead to a delay.

What if you cannot get Physician's Interrogatories?

There can be cases where you simply cannot obtain physician’s interrogatories.  For example, the person may not have seen a doctor in several months, so there is no one to complete the interrogatories.  If the patient or other family members has raised any concerns with the doctor, the doctor may be hesitant to get involved.  What do you do if you simply cannot get physician’s interrogatories?

The court has the authority under the guardianship statute to order an examination of the patient.  When you cannot obtain the physician’s interrogatories, you would file a motion with your petition asking the court to order an examination.  To do this, you would need a physician who has agreed to see the patient.  You may also need to pay the cost of the physician performing the evaluation.  Obtaining physician’s interrogatories is certainly the preferred method because it is faster and cheaper.  If you cannot get them, though, you do have options.

Questions about a guardianship or conservatorship? 

Schedule a FREE Consultation.

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.

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