Who can be a guardian?

Who can be appointed a guardian?

Who can be appointed guardian in Missouri for someone who has been found to be incapacitated?  In Missouri, a guardian is someone who is appointed by the court to manage the affairs of someone who has become incapacitated.  Incapacitated is a legal definition meaning that the person can no longer either decide what they want in terms of where they live or what doctor they are going to see, or they cannot communicate their wishes where they need someone else to step in and do that for them. 

The judge decides who will be the guardian.  The judge decides based on what is in the best interests of the incapacitated or disabled person.  The court though is not able to just simply use discretion completely and decide who that’s going to be.  The court by law when we are dealing with an adult who is disabled is required to follow an order of priority. 

The court has a list that they have to go through and look at first and says is there anyone in this category that could serve in the best interest of the individual.  Even if there someone else down the line who it well maybe that will be a good person by law the court is required to follow the order of priority.  The list is as follows:

  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.

Choice of the incapacitated person

First is going to be if the person can express who he or she wants to serve as their guardian.  Oftentimes because of the disability the incapacitated person is not able to tell the court “this is who I want to be my guardian.”  This might not be an option but if they are able to the court is going to look to that first.  If the person can express who he or she wants as a guardian the choice must be “reasonable.”  Even though the incapacitated person asks for someone, the court will still consider if that person can serve before making an appointment.

Power of Attorney

Second, the court will see whether or not the individual has nominated someone in a power of attorney.  This will be a document that was created before the person became disabled where they have said “if I ever become disabled or incapacitated and I need a guardian this is who I want to serve.”  This is an important reason to have a power of attorney in place – this may be your only way to express your own wishes to the court should you ever need a guardianship.

Family members

Third, the court will see if there are any family members who can serve in the best interest of the person.  Is the person married and can their spouse serve as guardian?  Do they have parents who are still living and able to serve as guardian?  Does the person have adult children, or adult brothers and sisters who could serve as guardian?  Missouri law specifically gives preference to family members provided they are fit to serve as a guardian.

Appointment in a will

An adult might not need a guardian until a loved one who has taken care of them passes away.  A parent or spouse may be able to take care of a person for years or even decades without officially obtaining a guardianship, but when the spouse or parent passes away a guardianship becomes necessary.  In those circumstances, the parent or spouse may have said in their will who should serve as guardian for the incapacitated person.  The court will look to that will to see who has been appointed to serve.

The Public Administrator – the guardian of last resort

All of these levels of priority focus on the wishes of the individual and if there are any family members who can serve as guardian.  The reason that the court goes through that priority is because they want to make sure there is no one else who can serve as guardian before turning to the guardian of last resort – the Public Administrator. 

The Public Administrator is a government body that serves as the guardian of last resort.  The Public Administrator serves a vital role by acting as guardian for individuals who simply have no one else to serve as a guardian.  While the Public Administrator provides an important public service, the Public Administrator often has a daunting caseload.  While the Public Administrator will do all they can for each individual, Missouri law recognizes that a person will often be better off if a family member can serve as guardian.

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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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