Guardianship and Conservatorship
Guardianship is the legal process that determines a person’s ability to continue to make decisions regarding his/her personal affairs. Conservatorship is similar to guardianship but involves the person’s ability to handle his/her finances.
What is a guardian?
A person appointed by a court to have care and custody of a minor or another person who has been legally determined to be incapacitated after the court determines a person’s inability to make decisions affecting his/her care. If it is determined that the person lacks this capacity, a guardian is appointed to make decisions on behalf of the individual.
What is a conservator?
Similar to a guardian except that the person appointed by a court is to handle the financial affairs of a minor or another person who has been legally determined to be disabled and/or lacks the capacity to handle his/her finances.
What does it mean to be incapacitated or disabled?
A person is considered to be incapacitated if they are unable to receive and understand information or to communicate decisions because of a physical or mental condition to such an extent that they are at risk and cannot meet their basic needs such as food, shelter, medical care or safety. Similarly, a person is considered disabled if they cannot manage their finances because they are unable to receive information and communicate decisions due to a physical or mental condition.
What is a Ward?
A ward is the legal term for a minor or incapacitated person for whom a guardian or limited guardian has been appointed.
What is a Protectee?
A protectee is the legal term for a person for whom a conservator or limited conservator has been appointed.
When referring to a ward or protectee’s estate, what all does this include?
Estate refers to all property owned by an individual, including cash, stocks, bonds, certificates of deposit (CDs), personal and real property, and all other assets and income.
Who can file?
Anyone can file a petition for guardian or conservator of a minor or of a person believed to be incapacitated.
Where to file?
A petition for guardianship or conservatorship can be filed in the circuit court, probate division of the county where the incapacitated person resides, owns property, or is currently located.
What information is needed to file?
The MO Long-Term Care Ombudsman program’s A Basic Guide for Understanding Guardianship & Conservatorship in Missouri provides a detailed list of information necessary to file a petition, including the name, age and address of the person suspected to be incapacitated, names and addresses of that person’s parents, spouse and children and why a guardianship is being sought.
Is there a cost to file?
There is a charge to file a petition for guardianship or conservatorship, but this may be waived when the petition concerns a person who does not have any money or assets. As costs may vary with individual circumstances, check with the probate court in which the petition is being filed.
In addition, a conservator must be bonded. The amount of the protectee’s estate will determine the amount of the bond. This allows the protectee’s estate to be protected should the conservator fail to properly perform his/her duties.
Do I need an attorney?
Pursuing guardianship or conservatorship is a legal process. The court must appoint an attorney to represent the alleged incapacitated person. Anyone considering applying to become a guardian for another person is advised to consult with an attorney prior to filing a petition.
Who can be appointed as a guardian or conservator?
Although there are some restrictions, any adult person may be appointed as a guardian or conservator, including persons who are not a resident of Missouri.
Missouri law states the court must first consider someone named by the incapacitated person at the time of the hearing, named in a previous (within the past 5 years) legal document such as a durable power of attorney, or a relative. Relatives are considered in the following order: spouse, parents, adult children, adult brothers and sisters, and other relative.
Usually a family member or another interested party is sought to act in the person’s best interest. If no family member or friend is available, the public administrator for the county in which the person resides is typically appointed.
Generally, the same person is appointed to serve as guardian and conservator. However, it is possible for different persons or entities to be appointed. Occasionally, corporations, such as a bank or trust company that is authorized to do business in Missouri, may be appointed to serve as conservator.
What are the responsibilities of a guardian?
A guardian is responsible for the care and protection of the ward and is required to act in the best interest of the ward. Basically, the guardian is to provide for the ward’s care, treatment, safety, welfare and ensure that the ward is living in the least restrictive available setting. This does not mean that the guardian must use his/her own resources to provide for the ward. When the ward’s estate and/or public benefits are not sufficient to meet the needs of the ward, the guardian may apply for county funds to address the ward’s needs.
What are the responsibilities of a conservator?
Under court supervision, a conservator is responsible for managing the protectee’s financial estate which includes protecting and preserving the estate, prudently investing the assets, accounting for property of the estate, and performing all other duties required by law. Some duties and expenditures require a specific court order be obtained by the conservator, while other duties may be performed without court authorization or approval. However, all acts of a conservator must be in the best interests of the protectee and their estate. The law requires strict reporting of all financial transactions to the court regardless of the size of the protectee’s estate.
What is the liability for a guardian or conservator?
A guardian or conservator is not personally responsible for the cost of care or debts of the ward or protectee. A guardian or conservator who acts on behalf of the ward or protectee is not liable for expenses occurred nor do they assume any responsibility for the ward or protectee’s previous debt unless the guardian or conservator does not act in the best interests of the ward or protectee, misappropriates property or funds, or misuses or abuses their responsibilities.
Is there compensation?
When the ward or protectee’s estate is sufficient, the court will determine the compensation to be paid to the guardian or conservator for fulfilling his/her responsibilities. This will include compensation for an attorney when legal counsel or advice is needed.
When is guardianship or conservatorship terminated?
The authority of a guardian or conservator ends when a minor ward becomes 18, the ward or protectee dies, the guardian or conservator resigns, the court order of appointment expires, or the court restores the ward or protectee’s capacity or ability. Upon the death of a ward or protectee, the guardian or conservator may continue in order to address funeral and burial expenses from the estate.
How can capacity or ability be restored?
A ward or protectee, with or without assistance from their guardian, conservator or any other interested person, may petition the court at any time to restore the ward to his/her capacity or the protectee to his/her ability. Or, the court may be petitioned to decrease the power of the guardian or conservator. If the ward or protectee’s petition is filed jointly with their guardian or conservator, the court may order restoration without a hearing. If the petition is filed without the guardian or conservator, the court must schedule a hearing and appoint an attorney to represent the ward or protectee if there is not existing legal representation. A petition for restoration may not be filed more than once every 180 days.
Are there other options?
Because a person’s decision making authority is limited and because a court order is required to remove a guardian or conservator, it is always wise to consider other options before considering guardianship or conservatorship. Some alternatives may include arranging for a full or part time caregiver or establishing a trust. In some cases, the agent named in a previously established durable power of attorney may begin making decisions for the person whose capacity is questioned. For those situations in which a person may still be partially able to manage his/her care or finances, the appointment of a limited guardian or limited conservator may be more appropriate option than full guardianship or conservatorship.
Remember, that a guardian or conservator is appointed for someone that the court has determined to be incapacitated. This legal process should not be sought simply because a person makes a decision that other people do not understand or like.
What is limited guardianship?
A court finds a person has limited incapacity in making decisions affecting his/her care. Based on the person’s abilities, the court determines what powers and duties shall be given to the limited guardian and what may be retained by the person to allow as much independent decision-making as is appropriate.
What is limited conservatorship?
Limited conservatorship applies when a person is determined by a court to have limited incapacity in handling his/her financial affairs. The court will grant certain powers and duties to a limited conservator, allowing the person to remain somewhat independent by handling those financial affairs that they are still capable of managing.
For more information on guardianship and conservatorship, please visit the following websites: