What does a guardian do?

What does a guardian do?

Once a court appoints a guardian, the person becomes a ward of the court.  The court acquires the authority to supervise and direct the person’s future care, treatment, placement, support and maintenance.  For an adult guardianship, the court will enter a judgment of incapacity (for a guardianship) and/or disability (for a conservatorship).  The judgment establishes the fact the person needs a guardian and/or a conservator.  For a guardianship of a child, the court will enter a judgment stating the child’s parents are unable, unwilling, or unfit to care for the child. 

With the judgment, the court will also issue letters of appointment naming someone the guardian and/or conservator for the person.  The letters of appointment are conclusive evidence of the person’s authority to make decisions on behalf of the ward and to request or consent to any care or treatment for that person.

In addition to appointing someone to act on the ward’s behalf, unless stated otherwise, the finding of incapacity also prevents the ward from having certain legal rights.  For example, a person under a guardianship is legally unable to vote, to be a witness in court, to get married, serve on a jury, to get a driver’s license, or to possess a firearm. 

Duties of a guardian

A guardian is responsible for the ward.  A guardian has general powers and duties to care for a ward’s care, treatment, habilitation (where the person lives), education, support and maintenance.  The duties of the guardian include making certain the ward resides in the “least restrictive” setting that is reasonably available.  The guardian is also responsible for making certain the ward receives appropriate medical care and other services as needed.  The guardian is responsible for promoting and protecting the care, comfort, safety, health and welfare of the ward.  The guardian is responsible for providing necessary consents for any of the ward’s needs or services.

Once a guardian is appointed, no medical or surgical procedures can be performed on the ward without the consent of the court appointed guardian.  There are limited exceptions to this rule for life-threatening emergencies.  The guardian of a child is also required to provide for the ward’s education, support and maintenance.

Is a guardian required to use his own money to support the person?

No.  A guardian of either an adult or a child 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 ward does not have sufficient funds to provide for him or herself.

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Limitations on the powers of a guardian.

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 ward 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 ward will live you must choose a location that is in the best interest of the ward, as opposed to a location that is convenient for you.  You cannot allow considerations of your own preferences or convenience when making decisions for the ward.

Second, the guardian must make certain the ward resides in the “least restrictive alternative” reasonably available.  As a guardian, you must make decisions for the ward that will allow the person to live, learn, and work with minimum restrictions on the person, as are appropriate considering the person’s physical and mental condition and financial means.  “Least restrictive alternative” also means choosing something that: (a) places the least possible restriction on the person’s personal liberty and exercise of rights and that promotes the greatest possible inclusion of the person into his or her community, as is appropriate based on the person’s physical and mental condition and financial means; and (b) is consistent with meeting the person’s essential requirements for health, safety, habilitation, treatment and recovery and protecting the person from abuse, neglect, and financial exploitation.  Decisions by you as the guardian should not intrude into the life of your ward any more than is necessary to ensure that person’s care and safety.

"Best interests" of the person

The “best interest of the ward” is a flexible standard that can change over time.  For example, when a guardian is first appointed the ward may be able to live independently, but the person’s condition could deteriorate over time such that the “best interest of the ward” requires placement in some form of a facility.  If necessary, the guardian can return to court to obtain additional powers if they were not originally granted in the letters of appointment.

A guardian may need to admit a ward to a mental health facility for treatment.  A guardian does not have authority to seek admission of their ward to a mental health facility for more than 30 days for any purpose without a court order.  If the person needs to be admitted to a mental health facility for more than 30 days, you will need to provide a physician’s statement to the court describing the ward’s current diagnosis, plan of care, treatment or habilitation and the probable duration of the admission.benefits for the ward if the ward does not have sufficient funds to provide for him or herself.

Supervision by the court

A guardian’s ability to make decisions regarding the care, treatment, placement, support and maintenance of the ward comes exclusively from the letters of appointment issued by the court.  The court has a continuing and permanent role to supervise the activities of the guardian on behalf of the ward.  The court must confirm that you are still suitable, willing, and able to serve as a guardian.  The court also monitors the guardianship to make certain you are discharging your duties and responsibilities in the best interest of the ward.  Missouri law requires a guardian to make an annual status report for the ward.  The report must include the present address of the ward, the present address of the guardian, the number of times the guardian has had contact with the ward and the nature of that contact (unless the ward is living with the guardian).  The report should also provide a summary of your visits and activities and state the extent to which the ward participates in decision-making.

If the ward is institutionalized, the guardian must inform the court if the guardian has received a copy of the treatment plan, the date of the plan, and whether the guardian agrees with the plan.  The guardian must also report the last time the ward was seen by a physician and the reason for the visit.  The guardian must report the current mental and physical condition of the ward and any major changes in the ward’s condition since the last report.  The guardian must also state to the court if he or she believes the guardianship is still necessary, and whether it is necessary to increase or decrease the guardian’s powers.  Finally, you must provide a summary of the plan for the coming year.

Questions about a guardianship or conservatorship? 

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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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