Adult Protective Services Policy Manual
Guardian/Conservator
1704.48
A guardianship hearing is the legal process of determining the capacity of a person to make decisions for him/herself regarding personal affairs. A guardian is appointed by the Circuit Court’s Probate Division to have the care and custody of the person of a minor or incapacitated person. The guardian of an adult is not responsible for the financial care of his/her ward.
A conservator is appointed by the court after it is found that an individual does not have the capacity to manage his/her finances. However, a conservator does not have authority to make decisions regarding the individual’s personal affairs.
The guardianship/conservatorship statute, Chapter 475, RSMo includes the provision to allow for varying degrees of ability a person may possess. The premise of a guardianship/conservatorship should be to take care of only those needs a person is not capable of meeting independently. The statute no longer uses the word "incompetence” but rather uses terms designating the degree of need; “partially disabled,” “disabled,” “partially incapacitated,” and “incapacitated.”
The purpose of guardianship/conservatorship is to provide protection for persons who are at risk of injury or financial harm as a result of their inability to make informed decisions. Legal intervention should be the last remedy as the adjudication by the court of incapacity/disability results in the loss of individual rights. Therefore, guardianships/conservatorships are not intended for people who are making unwise choices or are simply demonstrating anti-social behavior in their community. The fact that a person has a drug or alcohol dependency or is homeless, in and of itself, is not enough to warrant a guardian/conservator.
Other alternatives for maintaining or providing care shall be explored with the eligible adult before considering legal intervention. These alternatives, when appropriate, may include arranging for a caregiver, delivery of meals, someone to check on the individual daily, appointment of a power of attorney (POA), durable power of attorney (DPOA), payee, establishing a trust, etc. For those individuals who are a threat to themselves or others, it may be more appropriate to seek civil detention (see Policy 1704.46).
I. Definitions
In the discussion of Guardianship, the following terms shall apply:
Adult: A person age 18 or older.
Adjudication: A judgment by the court.
Claims: Claims are the demands to pay debts which the protectee incurred before or after a conservator was appointed to assist with his/her financial affairs. Claims may only be filed after a conservator has been appointed for an individual.
Conservator: A person or corporation appointed by the court to care for and have custody of the property and oversee the financial affairs of a minor or a disabled person. A "limited conservator" is a person whose duties and powers are limited by the court.
Disabled or Disabled Person: (Applicable only to matters pertaining to financial resources.) A person who is unable by reason of any physical or mental condition to receive and evaluate information or who lacks the ability to communicate decisions needed to manage his/her financial resources. When the court adjudicates a person disabled, specific legal rights are lost unless the order specifies otherwise (for example, enter into a contract). "Partially disabled" shall mean a person lacks capacity to manage, in part, his/her financial resources; only those legal rights specifically mentioned in the adjudication.
Guardian: A person appointed by the court to care for and have the custody of a minor or an incapacitated person. "Limited guardian" is a person whose powers as guardian are limited by the court to certain functions. The court has the flexibility to appoint a limited guardian for incapacitated persons who are not incapacitated for all purposes. Under these provisions the guardian is only empowered to make such decisions as the court specifically provides in its order, and similarly, the legal rights of the disabled person are only limited to the extent provided in the court order.
Guardian Ad Litem or Conservator Ad Litem: In an emergency situation which presents a substantial risk that serious physical harm or irreparable damage to property will occur, an attorney may be appointed by the court to represent a person in a particular pending litigation or proceeding. The guardian ad litem, or temporary guardian, is appointed for a period not to exceed 30 days.
Incapacitated Person: (Pertains to matters of the everyday life of an individual.) One who is unable by reason of any physical or mental condition to receive and evaluate information or is unable to communicate decisions to such an extent that he/she lacks capacity to meet essential requirements for care such that serious physical injury, illness or disease is likely to occur. Requirements for care shall include food, clothing, shelter, safety, etc. When the court adjudicates a person incapacitated, specific legal rights are lost unless the order specifies otherwise (the right to vote, where to live, etc.). "Partially incapacitated" shall be one who lacks capacity to meet, in part, essential requirements for care without court-ordered assistance. Only the legal rights specifically mentioned in the adjudication are taken away.
Incompetent: A person adjudged to be "disabled" or "incapacitated" is presumed to be incompetent. Likewise, a person adjudged to be "partially disabled" or "partially incapacitated" is presumed to be competent. The court at any time after a hearing, may determine that any adjudicated person is incompetent for some purposes and competent for other purposes.
Least Restrictive Environment: The residence of a person for whom a guardian has been appointed which imposes on the ward only such restraints as are necessary to prevent him/her from injuring himself/herself (and others) and provide such care, habilitation and treatment as are appropriate, considering the physical and mental condition and financial means.
Manage financial resources: The ability to either:
• obtain, administer, and dispose of: real and personal property; intangible property; business property; benefits; income or any assets; or
• prevent waste, loss or dissipation of property; or
• provide for the care and support (of such person or anyone legally dependent upon him/her) by a person of ordinary skills and intelligence commensurate with his/her training and education.
Protectee: A person for whom a conservator or limited conservator has been appointed.
Ward: An Incapacitated person for whom a guardian or limited guardian has been appointed.
II. Petitioning and Preparing Court Summaries
Some individuals may become incapacitated to the point they are unable to receive and/or communicate information in order to meet their basic needs. Guidelines have been developed to assist Division of Senior and Disability Services (DSDS), Adult Protective Community Workers (APCW) in assessing the need to pursue guardianship/conservatorship and to ensure the legal entities involved understand the specific circumstances of each individual case.
Policy 1704.48, Exhibit A Guardianship/Conservatorship Review shall be completed by the APCW in every case in which guardianship/conservatorship is being pursued. The Guardianship/Conservatorship Review shall be completed and then reviewed by the Adult Protective Community Supervisor (APCS). The APCS shall sign off on the Guardianship/Conservatorship Review to attest to the recommendation to proceed with guardianship. The APCW shall attach the completed form, along with any additional documentation such as physician’s written statement, copy of power of attorney, wills, trusts, etc to the electronic case record. This Review shall be submitted as a court document and should be prepared following good documentation practices including the presentation of factual, accurate, clear, concise, complete and well-organized data (see Policy 1706.20).
The APCW shall complete the Guardianship/Conservatorship Identifying Information Form (see Policy 1704.48, Exhibit B), attach a copy to the electronic record, and submit both Exhibit A and B, along with all other supporting documentation, to the local public administrator if the PA’s office is filing, or Department of Health and Senior Services Office of General Counsel (OGC) on all cases recommending guardianship/conservatorship.
In cases where the family is considering guardianship/conservatorship, the APCW may share and discuss a blank copy of the Court Summary with the family in an effort to assist in determining whether guardianship/conservatorship is appropriate to pursue. The APCW shall ensure any family member appropriate and capable of acting as the guardian has been contacted prior to consulting with OGC to request DSDS involvement in pursing guardianship. Since the family member of an alleged incompetent or incapacitated person will be given priority by the courts to act as the guardian, OGC must be informed anytime an Adult Protective Services (APS) investigation suggests that a family member isn’t suitable to act as the guardian/conservator. These reasons include, but are not limited to, a history of or possibility of financial exploitation.
The OGC may not be able to assist on cases involving individuals who do not have a history with the division. For example, an individual residing in a facility/hospital who appears incompetent may be appropriately referred to OGC only if he/she is adamant about returning to a dangerous environment with no responsible party capable of assisting. Guardianship/conservatorship requests to OGC shall be made only on open hotline reports or protective service cases.
The OGC can assist the APCW with filing for an emergency guardianship/conservatorship if a substantial risk of serious physical harm or irreparable damage to property exists and immediate action is needed to ensure the health, safety and welfare of an alleged incapacitated eligible adult.
III. The Adjudication Process
Step 1
A petition is filed in Circuit Court, Probate Division to request that evidence be heard and a determination be made regarding an individual (see Policy 1704.49, Exhibit A). The APCW shall determine whether the county where the petition is being filed has its own unique petition form. The petition forms can typically be accessed on the county website or by calling the probate clerk at the local county courthouse. These forms shall be obtained and submitted to OGC when available. OGC will complete the petition then return the petition to the APCW to sign before it’s presented to the courts. The petition is filed in the county where the respondent has his/her domicile or official residence. If the respondent has no permanent residence, the petition will be filed in the county in which he/she has property. If there is no permanent residence or property, a petition may be filed in any county where the respondent can be found.
A. Guardianship:
Any interested person may file a petition for the appointment of himself/herself or some other qualified person as guardian of an incapacitated person. The petition shall include:
1. Name, age, current location, and current home address, PO Box if applicable and previous addresses, for a period of three (3) years prior to the filing date, of the respondent, if known. If the address is not known, efforts to obtain this information must be documented. OGC must be contacted by phone or email if the respondent’s location changes during the guardianship proceedings;
2. The estimated value of real and personal property belonging to the respondent and where it is located, including any property outside of the state of Missouri;
3. Name and address of the following people:
a. parents of respondent and whether they are living or deceased,
b. spouse of the respondent;
c. all living children of the respondent and their ages
d. the person having custody, care or control of the alleged incompetent;
e. siblings of the respondent;
f. Any adult(s) currently residing with the respondent;
g. any guardian previously appointed to the respondent or previously appointed DPOA or POA, and note if the ward is a trustee
h. all other wards for whom the person filing the petition is already the guardian or conservator, unless the appointment is sought by a public administrator.
4. In the case of an incapacitated person, the specific reasons the appointment is being sought; information regarding the reasons why the incapacitated person is unable by reason of any physical or mental condition to receive and evaluate information or lacks the ability to communicate decisions needed to meet essential requirements such as food, clothing, and shelter.
B. Conservatorship
Any interested person may file for the appointment of himself/herself or some other qualified person as conservator of a disabled person. The petition for appointment of a conservator or limited conservator of the estate may be combined with a petition for appointment of guardian or limited guardian of the person.
The petition must include:
1. Name, age, current location, and current home address, PO Box if applicable and previous addresses, for a period of three (3) years prior to the filing date, of the respondent, if known. If the address is not known, efforts to obtain this information must be documented. OGC must be contacted by phone or email if the respondent’s location changes during the conservatorship proceedings;
2. If the appointment of conservator is sought by an individual who is not a public administrator, the names and addresses of all other wards for whom the person filing the petition is already the guardian or conservator;
3. The reasons why the appointment of conservator is sought;
4. The specific reasons why the incapacitated person is unable by reason of some specific physical or mental condition to receive and evaluate information or communicate decisions to such an extent that the person cannot manage his/her financial resources.
NOTE: APCW’s must petition for guardian/conservator through the Department of Health and Senior Services Office of General Counsel (see Policy 1703.30). The OGC will only petition in cases where the county public administrator is being sought as the guardian/conservator.
C. Filing Fees
The costs of the court proceedings to determine incapacity or disability of any person will be paid from the estate of this person if he/she is found to be incapacitated or disabled. If the person’s estate is insufficient, the costs will be paid by the county in which the petition was filed. When DSDS files the petition, DSDS does not pay costs or a filing fee pursuant to Section 475.085.1. The costs of the proceeding shall be taxed after the court rules on the petition.
Step 2
Once the petition(s) have been filed and the court is satisfied that good grounds for such action have been established, the court shall promptly set a hearing. The hearing will be set as soon as reasonably possible and will usually be a week to ten days.