Guardianship and Conservatorship

The person versus the money, and Missouri keeps them genuinely separate. Section 475.010, RSMo defines a guardian as “one appointed by a court to have the care and custody of the person of a minor or of an incapacitated person,” and a conservator as “one appointed by a court to have the care and custody of the estate of a minor or a disabled person.” The triggering conditions differ too. An incapacitated person is one who, because of a physical, mental or cognitive condition, cannot receive and evaluate information or communicate decisions to the extent that, even with appropriate services and assistive technology, they lack capacity to meet essential requirements for food, clothing, shelter and safety such that serious physical injury, illness or disease is likely. A disabled person is one who to a similar degree lacks the ability to manage their financial resources. The two adjudications are independent, and a great many people need one without the other — a person with substantial assets and early dementia may need a conservator long before they need a guardian.

Not only can it — since 2018 it must, if a less restrictive alternative will work. Section 475.079.1, RSMo permits appointment only where the court or a jury finds, by clear and convincing evidence, that the person is incapacitated and “that the respondent’s identified needs cannot be met by a less restrictive alternative.” That second clause is an element, not a factor. Section 475.075.13 lists seven alternatives the court must consider first, and § 475.075.11 is blunt about the other end: if the court finds the respondent possesses capacity, “the court shall deny the petition.” So the practical question in most cases is not whether the person is declining. It is whether a durable power of attorney, a trust, a representative payee, services or a limited appointment gets the job done without a full guardianship.

Yes, and Missouri gives that choice unusual force. Section 475.050.3, RSMo provides that “except for good cause shown, the court shall make its appointment in accordance with the incapacitated or disabled person’s most recent valid nomination of an eligible person qualified to serve.” That is a directive, not a suggestion. Section 475.050.1 sets the priority order: first, anyone the person nominates in court if still able to make and communicate a reasonable choice; second, anyone nominated in a durable power of attorney or in a writing signed by the person and two witnesses who signed at the person’s request, executed before incapacity began; then spouse, parents, adult children, adult siblings and other close adult relatives; then a person named in the probated will of such a spouse or relative. Note the formality on the standalone writing — two witnesses signing at your request. Get it wrong and the nomination fails.

Often, and it does two separate jobs. First, it can defeat the petition: § 475.075.13(1) requires the court to consider evidence of a durable power of attorney executed before the petition was filed, and under § 475.079.1 a workable alternative is fatal to the appointment. Second, if an appointment happens anyway, the POA controls who serves, through the § 475.050.1(2) priority and the § 475.050.3 command. What a POA cannot do is cover ground it does not address — if the document is narrow, stale, or was never properly executed, it will not carry the weight. Missouri’s durable power of attorney requirements live in Chapter 404, RSMo and are technical about how the instrument must be denominated, what survival language it must contain, and how it must be acknowledged. A form downloaded from the internet is exactly the kind of document that fails at the hospital. See the basic estate plan.

This is the most commonly mangled point in the whole area, and the answer is two-part. A conservatorship does not automatically terminate a financial power of attorney. Section 404.717.1, RSMo lists the events that modify or terminate a POA between principal and attorney in fact — appointment of a conservator is not among them. Under § 404.727.5 a court may, on petition and for good cause, terminate or modify a durable POA or remove the attorney in fact — discretionary, on petition, not automatic. And § 475.094 bars a conservator from revoking or amending a durable power of attorney without court authorization. The one automatic revocation is narrow: § 475.361.3 provides that appointment of a guardian revokes the powers of an agent previously appointed under a durable power of attorney for health care, unless the court orders otherwise. Financial POA: survives. Health care POA: revoked by a guardianship unless the court says otherwise.

Yes, in an adult case, and Missouri is in the minority of states that provide one. Section 475.075.10, RSMo lists the respondent’s rights, and subdivision (2) is “[t]he right to have a jury trial.” It is not decorative — § 475.079.1 is framed around whether “it is found by the jury or the court” that the person is incapacitated. The same subsection gives the respondent the right to be represented by an attorney, to present evidence, to cross-examine adverse witnesses, to remain silent, to have the hearing open or closed as the respondent elects, to a hearing conducted under the civil rules of evidence, to be present, and to appeal. Note the jury right belongs to the adult incapacity track; guardianship of a minor under § 475.030.4 is a different proceeding with a different burden of proof.

Yes, and it is not optional. Section 475.075.4, RSMo provides that upon the filing of the petition “the court shall immediately appoint an attorney to represent the respondent,” and that attorney “shall visit the respondent at least twenty-four hours prior to the hearing” absent good cause. Section 475.075.5 adds real teeth: the appointment order gives that attorney the right to obtain all medical and financial records; court-appointed counsel may withdraw only after a hearing and a finding of cause; the respondent’s attorney may not double as guardian ad litem before judgment; and — a provision worth knowing if you are the one filing — “the petitioner shall not nominate an attorney for the respondent.” A common misconception is that a guardian ad litem must be appointed. That is wrong; the mandatory appointment is an attorney, and a GAL is discretionary.

By statute, no — by local practice, almost certainly yes. Chapter 475 does not require a physician’s statement to accompany an adult petition. Section 475.075.6 makes the examination discretionary: “[t]he court may direct that the respondent be examined by a physician, licensed psychologist, or other appropriate professional.” But most Missouri circuits require a medical affidavit with the petition by local rule or standing order — St. Louis County’s adult guardianship packet, for example, includes one. So plan on obtaining it. One feature of the statutory examination is worth knowing: before examining, the professional must explain to the respondent in simple language that the purpose is to produce evidence about capacity, that the respondent has the right to remain silent, and that what is said may be used at the hearing. That warning is unusual and it is real.

You pay the costs. Section 475.085.1, RSMo provides that the costs of a proceeding as to incapacity or disability are paid from the respondent’s estate if they are found incapacitated or disabled, or by the county if the estate is insufficient — “but if the person is found not to be incapacitated or disabled the costs shall be paid by the person filing the petition,” unless the petitioner is a public employee acting officially. That is a deliberate deterrent against filing on thin evidence, and it is worth weighing honestly before you file against a family member who may well testify capably at the hearing. Note this section governs the adult incapacity track. Note also what it does not do: it shifts costs, not attorney’s fees. There is no Missouri statute making a losing petitioner pay the other side’s legal fees in a guardianship contest, and claims to the contrary are wrong.

It depends on the type of adjudication and on what the judge writes, and the common claim that these rights are automatically retained is wrong. Under § 475.078, RSMo, an adjudication of full incapacity or disability “does operate to impose…all legal disabilities provided by law, except to the extent specified in the order,” and the person “shall be presumed to be incompetent.” An adjudication of partial incapacity does not impose any legal disability except as the order specifies, and the person “shall be presumed to be competent.” What changed in 2018 is that the court must now address these rights expressly: § 475.075.14 requires detailed findings including whether the respondent retains the right to vote, is permitted to drive if able to pass the required test, and retains the right to marry — and § 475.078.4 lets the court preserve those rights even for someone totally incapacitated. A ward may also petition under § 475.361.2 for the right to marry, consent to medical treatment, establish a residence, change domicile, or drive.

A nursing home, generally yes — but not without limits, and a psychiatric facility is a separate question. Section 475.120.3, RSMo requires the guardian to “[a]ssure that the ward resides in the best and least restrictive setting reasonably available,” to exercise authority “only as necessitated by the adult ward’s limitations,” and to encourage the ward to participate in decisions and regain capacity. A ward may petition the court under § 475.361.2(4)–(5) to establish a residence or change domicile. For mental health facilities the rule is explicit: § 475.120.5 bars a guardian from seeking admission to a mental health or intellectual disability facility for more than thirty days without a court order. Beyond that, § 475.121 requires an application supported by a physician’s statement giving the diagnosis, plan of care and probable duration, with the court authorized to appoint an attorney for the ward. And § 475.075.15 expressly forbids using emergency guardianship as an alternative to civil commitment under Chapter 632.

Yes, but it is narrower and slower than people hope. Section 475.075.15, RSMo allows appointment of an emergency guardian ad litem or conservator ad litem where an alleged incapacitated or disabled person has no guardian or conservator and “an emergency exists that presents a substantial risk that serious physical harm will occur to the respondent’s person or irreparable damage will occur to the respondent’s property.” The appointment is for a specified period not exceeding ninety days, extendable in further ninety-day increments on a showing of continuing emergency. Two corrections to how this is usually described: it is not a true ex parte remedy — notice to the respondent’s appointed attorney and service on the respondent are required, and appointment follows a hearing; what may be omitted is notice to other interested persons. And the statute requires that hearing within five business days of filing absent good cause. If the emergency is abuse or exploitation rather than incapacity, the faster call is often the Missouri elder abuse hotline at 1-800-392-0210 (7:00 a.m. to 8:00 p.m., seven days a week) or 911.

No, and Missouri makes it deliberately easier to get out than it was to get in. Section 475.083.4, RSMo lets the guardian, the conservator, any person on behalf of the ward, or the ward individually petition to restore capacity, decrease the fiduciary’s powers, or return rights — and provides that “[t]he petition from the ward or protectee…may be an informal letter to the court,” with anyone who interferes with transmitting that letter subject to contempt. The burden on a contested restoration petition is preponderance of the evidence (§ 475.083.6), which is lower than the clear and convincing standard required to impose the guardianship in the first place. Such a petition may not be filed more than once every 180 days. Separately, § 475.082 requires the court to review every adult guardianship at least annually, and if there is any indication capacity has returned, “the court shall appoint an attorney to file…a petition for termination.”

No — and this is stated expressly. Section 475.361.4, RSMo: “The appointment of a guardian is not a determination that the ward lacks testamentary capacity.” Testamentary capacity is a separate and lower standard than the capacity to manage one’s own affairs, and it is assessed at the moment of signing. That said, a will signed by someone under guardianship invites a challenge, so the circumstances of execution matter enormously — who was present, what the drafting attorney documented, whether a contemporaneous capacity assessment exists. If a family member under guardianship wants to make or change a will, that is a conversation to have carefully and with a record, not quietly. See contested estates.

File, and be reviewed. A guardian files an annual personal status report on the anniversary of the letters under § 475.082.2, RSMo, covering the ward’s address, the guardian’s address, how many times the guardian had contact with the ward and when the ward was last seen, a summary of visits and “the extent to which the ward has participated in decisionmaking,” the treatment plan if institutionalized, the last medical visit, the ward’s current condition, the guardian’s opinion on whether the guardianship should continue and whether powers should be increased or decreased, and a plan for the coming year. A conservator files an annual settlement under § 475.270 at a time fixed by the court within sixty days after the anniversary of appointment, conforming to § 473.543, plus narrative disclosures. Section 475.082.1 separately requires the court to inquire into the status of every adult ward and protectee at least annually. This is real ongoing work, and it is one of the reasons a good POA is cheaper than a guardianship in every sense.

Fees and expenses generally come from the estate, subject to the court fixing the amount. Section 475.265, RSMo allows a guardian or conservator “such compensation for his services…as the court shall deem just and reasonable,” plus necessary administration expenses “including reasonable attorney fees if the employment of an attorney for the particular purpose is necessary.” The court fixes those amounts at an annual or final accounting, with interim applications allowed — and if the fiduciary “has failed to discharge his duties…in any respect,” the court “may deny him any compensation whatsoever.” The court may also consider ties of blood, marriage or adoption in setting compensation, which in practice often means a family member serving without a fee. Costs of the incapacity proceeding itself follow § 475.085 — the estate if the petition succeeds, the petitioner if it does not. Be sceptical of any claim that the estate simply pays everyone’s lawyer in a contested case; that is not what § 475.265 says.

Not necessarily where you live, and the answer requires reading the venue statute against the facts — Missouri’s venue provision for these proceedings is § 475.035, RSMo, and it should be checked against the specific circumstances rather than assumed. Missouri has also adopted a set of sections at §§ 475.501 to 475.555 dealing with jurisdiction in adult guardianship and protective proceedings that cross state lines, which is the framework for transferring an existing guardianship into or out of Missouri and for resolving competing filings in two states. If a parent has moved, splits time between states, or already has a guardian appointed elsewhere, that is a threshold question worth answering before anything is filed — a petition in the wrong court wastes months. Bring the existing orders, if there are any, to the first conversation.