There are many situations in which an adult person is no longer capable of caring for themselves or managing their financial affairs. When this happens, a Missouri probate court can intervene. The judge can appoint a guardian to oversee the care and custody of the person, as well as a conservator to oversee their property and estate.
How Missouri Law Defines “Incapacity” and “Disability”
The terms guardian and conservator often get used interchangeably. Indeed, in most cases a Missouri court will name the same person–usually a close relative–to serve as both guardian and conservator, but there are exceptions. For example, the judge may decide to name an immediate family member a guardian while appointing a corporate fiduciary, like a bank, to act as conservator.
Missouri law confuses the issue further by stating a guardianship requires proof that an adult is “incapacitated,” while a conservatorship requires proof they are “disabled.” Both terms refer to a scenario in which an adult is “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions.” Again, the key distinction is that with incapacity–and thus guardianship–those decisions refer primarily to matters of personal care, such as obtaining food and shelter, while with disability, the standard for conservatorship, we are talking about decisions regarding the management of financial resources.
It is also important to note that disability or incapacity are not all-or-nothing standards. A judge can find that an adult is only partially disabled or incapacitated. Consequently, the court may limit a guardian or conservator's authority to certain areas.
How Guardianship and Conservatorship Proceedings Work
Any interested person, such as a relative or health care provider, can file a petition to establish a guardianship or conservatorship with the probate division of the Missouri Circuit Court where the subject lives or owns property. A judge will then appoint an attorney, known as a guardian ad litem to represent the subject during the guardianship or conservatorship proceeding.
The court will then hold a hearing on the petition. The person who filed the petition has the legal burden of proving the subject is disabled or incapacitated. Remember, as a matter of law every adult is presumed competent to make decisions for themselves. Even when a judge finds there is evidence of disability or incapacity, the court is still required to formulate the least restrictive remedy necessary to protect the subject's best interests without unnecessarily violating their personal liberties or freedom.
How to Avoid the Need for a Guardianship or Conservatorship
With proper estate planning, it is often unnecessary for a court to step in and appoint a guardian or conservator when an adult is no longer able to make their own decisions. By placing your assets in a revocable trust, for example, you can name a successor trustee to oversee the management of your assets in the event of disability. Similarly, a Durable Power of Attorney for Health Care can authorize someone to make critical decisions regarding your care should you become incapacitated.
If you would like to learn more about these options, or if you are involved in a potential guardianship or conservatorship matter, and need to speak with an experienced St. Louis estate planning lawyer, contact the Law Office of Keya M. Reed, LLC, today.