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What is Conservatorship/Guardianship and When Should I Pursue This Legal Action?

Posted by Joshua Wilson | Jun 07, 2021 | 0 Comments

There May Come a Time In Your Life When You Are Forced To Make a Very Challenging Decision Regarding a Loved One.

Photo by Dario Valenzuela

It may be in regard to your mother, father, child, aunt, uncle, niece, or nephew, or any other family member you have a strong relationship with.

This decision comes during a period where a loved one, usually a family member, not always, but usually, is diagnosed or has been diagnosed with a health condition. These conditions can be serious mental or physical diagnoses or health issues that have already been present but have worsened.

Either way, after these diagnoses, or after some time has passed after the diagnosis, you might have reason to believe that your loved one is no longer capable of taking care of their own basic needs, and sometimes even their finances, in a manner that is in their best interest.

At this point, you might start to consider the reality that you need to intervene legally and consider becoming their conservator or guardian. 

Photo by Rod Long

This thought or choice is never an easy one to face.

The realization that someone you love is no longer capable of caring for themselves in a safe way, is inevitably going to be hard on the person pursuing the conservatorship/guardianship, and in a lot of cases, on the person who is no longer able to safely care for themselves too. Not all situations are like this, but in many they are.

However, if you choose to wait too long on making this decision, and something happens that could have been prevented if you had taken the legal action necessary in order to become the conservator or guardian, that will be much harder in the long run, as well as potentially having devastating and detrimental consequences to you and/or your loved one. 

When making this decision it is of the utmost importance to understand what exactly a conservator versus a guardian is, and how they are defined in the state of Missouri.

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First Things First:

What Is The Difference Between a Conservator and a Guardian in the State of Missouri?

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According to Missouri Law;

  • A guardian is a person who has been appointed by a court (usually the probate division of the circuit court) to have the care and custody of a minor or of an adult person who has been legally determined to be incapacitated.
Photo by Renate Vanaga
  • A conservator is a person or a corporation, such as a bank or trust company, appointed by a court (again, usually the probate division of the circuit court) to manage the property of a minor or of an adult person who has been legally determined to be disabled.

Missouri law states that a person with legal standing in this person's life; may petition the court to become either a guardian over the person or a conservator over the estate (or both) of a minor or an incapacitated adult.

Before we get into the intricacies of these matters, it is worth noting that in most situations, it is the same individual who is appointed guardian and conservator.

Even though it's possible for different people to be granted either-or, it is rare

Laws Surrounding Minors and Adults Regarding Conservatorship/Guardianship Are Significantly Different

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Photo by Katie Emslie

Minors Requiring Conservatorship/Guardianship:

As one may expect, parents are given first priority in appointment as conservators for estates of their minor children. This type of designation is generally not necessary. It is only necessary if the minor of the parents are scheduled to receive some sort of property, finances, or assets, from any source that is not their own parents.

Here are two examples where this type of appointment would be worth pursuing:

  • If the minor in question is receiving an inheritance from a relative/non-relative's estate
  • Or if the minor in question was a part of a settlement of some sort, perhaps a personal injury suit that involved a cash settlement

With that all being said; parents are considered for all intents and purposes; the guardians over their children, and do not need to seek an appointment of guardianship over their child who is still classified as a minor in court, in most circumstances.

However, if a minor has no parents, then the court may consider a guardian and conservator chosen by the minor if the minor is over the age of 14 years.

The court may also consider a person named in the will of the last parent to die.

In all matters of this sort, the person to be appointed by the judge absolutely must be qualified according to Missouri laws.

If both theminor and the last surviving parents are unable to choose or recommend a qualified guardian; the court is left with no option but to appoint the most suitable person in their educated opinion. In most cases, this is a close adult relative, usually a sibling, who is willing and able to meet the necessary obligations of being a guardian/conservator.

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Adults Requiring Conservatorship/Guardianship:

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An incapacitated or disabled adult may designate his or her own guardian or conservator if, at the time of the hearing, the person is able to communicate a reasonable choice to the court. In addition, any competent adult person may designate a suitable person to serve as guardian or a suitable person or eligible corporation to serve as conservator, if done in writing and witnessed by at least two witnesses within five years before the date of the hearing.

(These types of designations are made in guardians/conservators under Missouri Law 38; "Durable Powers of Attorney")

If no suitable person has been nominated by the incapacitated or disabled person, the court will consider appointing, in order:

  • The spouse
  • The parents
  • Any adult children of the party requiring guardianship/conservatorship
  • Adult siblings
  • Or any other close adult relatives.

If there are no relatives willing or able to serve, the court may appoint any suitable person (such as a close friend) or, if no one steps forward, the public administrator. Someone interested in becoming a loved one's conservator or guardian does not have to be a resident of Missouri to attain the appointment as such. However, the court may consider the fact of non-residency when determining who may be suitable for appointment as a guardian or conservator.

How Does The State of Missouri Define an Adult as "Incapacitated"

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In the State of Missouri,

An adult is deemed incapacitated once they are;

"unable to receive and understand information or to communicate decisions because of a physical or mental condition to such an extent that he or she is at risk and cannot meet his/her basic needs such as food, shelter, medical care or safety.”

In most of these types of situations, guardianship or conservatorship's come into play upon an elderly loved one suffering from the symptoms of Alzheimer's, or any illness/disease that falls under the umbrella of dementia.

Both a Conservatorship and a Guardianship Has Two Different Types:

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In a conservatorship of an adult, the conservator is given some or full authority over the estate of the "ward", (the loved one who is deemed by the state incapacitated).

Limited and Full Conservatorships:

In a limited conservatorship, the conservator is only to be given the authority to make explicitly specific decisions regarding the person/ward's estate.

In a full conservatorship, the conservator is given the authority to make all decisions in regard to the person/ward's estate.

General conservator responsibilities include but are not limited to,

  • Deciding what bills must be paid in the name of the ward with their finances/assets
  • Deciding what property of the ward's estate to sell to help pay bills/expenses.
  • Or in some cases what contracts to be entered involving the ward's name. Usually, these contracts are involving living situations, like rental agreements, or leases.

Limited and Full Guardianships:

Photo by Mary Blackwey

A guardianship gives the guardian authority over the person or the ward.

In a limited guardianship, the guardian is only to be given the authority to make explicitly specific decisions regarding the person's/ward's daily life.

In a full guardianship, the guardian is given the authority to make all decisions in regard to the person/ward in all matters of their daily life.

Some examples of guardian rights include but are not limited to:

  • Deciding what activities the person/ward participates in
  • Where the person/ward lives
  • Which doctors or hospitals the person/ward will receive care from.

It Is Possible and Likely To Be Appointed in Many Cases as the Guardian, As Well as the Conservator For Your Loved One.

Photo by Scott Graham

In both guardianships and conservatorships, the court will maintain a certain level of oversight over your appointment as guardian/conservator.

By this, I mean you will need to supply the court with reports over the status of your loved one/ward to the court on a semi-regular basis.

This is in order to make sure you are taking proper care of the person/ward and is a precaution to protect incapacitated people from being neglected, abused, or generally mistreated.

Everyone that is a conservator or guardian is expected to abide by these rules, so do not take them as an insult. 

Now That You Understand the Differences Between a Conservator and a Guardian and with Adults and Minors; How Do You Seek Out Appointment of Becoming a Guardian?

Photo by Nathan Anderson

In order to be appointed as a conservator or guardian or both over your loved one, the first step legally is to file a petition with the probate division of the circuit court. This petition must state the reasons why you believe a conservator/guardian is essential in this case, and why you are the best fit for the role.

The person/ward, your loved one has the legal right to be given notification of your petition being filed and they may object to the appointment petition being filed.

The court must hold a hearing in order to hear and see the evidence presented, that argues the individual's incapacity, and a necessity for a conservator/guardian to be appointed. This hearing also includes the petitioner stating their case for why they should be the appointed guardian/conservator over the individual in question.

If the court finds the petition is valid, a judge will proceed to issue the decree of guardianship/conservatorship.

In this decree, there will be a clear explanation of what responsibilities/rights the guardian/conservator and individual have from that point on.

Please do not hesitate to reach out and consult with a caring, knowledgable attorney at the Joshua Wilson Law Firm when making these decisions, and moving forward legally.

Our team would be honored to assist you and your loved one in this process to make sure everyone is taken care of in their best interest.

About the Author

Joshua Wilson

Divorce is complex and highly emotional. Everything is going to change, including your most important personal relationships, your finances, your daily routine, and -- of course -- your home life. This can be a stressful time, and the parties involved often are not thinking clearly. You need some...

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