Getting to Know Legal Guardianship in Missouri: A Complete Overview

How Does the System of Legal Guardianship Work?

When a loved one passes away, their affairs will typically need to be handled by a representative, or trust administrator. Often, wills are drafted to avoid this process from being burdensome, but in some cases, especially where loved ones disagree on the validity of a will, also known as "probating an estate," a legal proceeding must be initiated with a court to appoint someone to administer the decedent’s estate. A probate lawyer, also called a "probate attorney," may assist in preparing any necessary documentation to retain approval. This is a very complex area of law that presents numerous opportunities for litigation.
In Missouri, legal guardianship is a legal status obtained by a person who is responsible for the care of another, who is often incapable of caring for themselves or their property. In some cases, "guardianship" and "conservatorship" are used interchangeably. That is because the caregiver may be responsible for both the personal care and the total affairs of the individual. In other cases , such as when a parent becomes guardian of a disabled minor, there are more restrictions placed on the scope of the fiduciary duty. In those cases, the parent may apply for both guardianship and conservatorship. A petitioner must sue for the appointment of a guardian to be placed over the person and/or property of a minor or disabled adult. If successful in the petition, a guardian must fulfill their duties, including but not limited to:
The main objective of appointing a guardian is to substitute the role of parent. This transition of personnel is accompanied by restrictions on the rights of the protected person to act independently. The guardian has a duty to provide care for the ward, and to make decisions concerning both the person and their estate, but the guardian must do so within the scope of the limited or full guardianship granted by the Probate Court.

Types of Legal Guardianship in Missouri

In Missouri, a guardian is a person or agency appointed by a judge to make decisions for another. A "ward" is the person who receives assistance from the guardian. Generally, people will have a guardian once they are elderly and cannot make decisions about their finances or care. However, a person with a disability or a minor may have a guardian as well.
There are three different types of guardianship available in Missouri: guardianship of the person, guardianship of the estate, and limited guardianship.
Guardianship of the Person: A guardian of the person is a person appointed by a judge of the probate court. The guardian is tasked with "personal and property" responsibilities on behalf of a person. The guardian has the authority to make medical decisions on behalf of the ward, to supervise the welfare of the ward, to select the ward’s residence, and to consent to medical treatments of the ward, including involuntary medical treatment. A guardian of person also has the general "care and control" of the ward.
Guardianship of the Estate: Guardianship of the estate refers to the property of the ward. A guardian of the estate can be the person tasked with overseeing the overall affairs of the ward. In some cases, the guardian of the estate can be the executor of the estate or the conservator. The general role of a guardian of the estate is to make financial decisions for the benefit of the ward. In most situations, a guardian of the estate will not be able to take control of the ward’s estate without being made an executor.
Limited Guardianship: Limited guardianship occurs if the judge finds the person has a limited disability. With limited guardianship, a volunteer of the probate court visits the person with a disability at their residence. The individual investigating the person with the disability reviews our personal history and the living situation of the person. After the interview, the volunteer reports to the probate court judge whether limited guardianship is appropriate.
In Missouri, there are certain requirements the person seeking to become a guardian must also meet. A guardian cannot be a person that has a disability, nor can a person be a guardian if they have been convicted of a felony.

Process of Establishing Guardianship

The legal process for establishing guardianship in Missouri involves several steps. First, the individual seeking to become a guardian must file a petition with the appropriate probate court in the county where the proposed ward resides or has property. This petition must include details about the proposed ward, such as their age, residence, and the names and addresses of their relatives. It should also state why guardianship is needed and detail the nature of the proposed guardian’s relationship to the proposed ward.
The next step is a court investigation. The court will appoint a disinterested person who will investigate the allegations in the petition and file a report with the court. This is usually an attorney who will provide a recommendation as to whether the guardianship should be granted. A hearing will be held, usually within 30 days after the appointment of the investigator and the filing of the report, unless the hearing is continued or postponed by the court.
Notice of the hearing must be given to all interested parties, including the spouse of the proposed ward, parents, and adult children. If they are lacking, notice must also be given to the guardian ad litem, a lawyer appointed by the court to represent the best interests of the proposed ward, as well as any person nominated in a power of attorney.
At the hearing, the judge will review all the evidence, including the investigation report, testimony from the proposed guardian, the proposed ward, and any interested parties. The court will also consider whether there is a less restrictive alternative than guardianship, such as a durable power of attorney or conservatorship, that could better serve the proposed ward’s needs.
If the court decides that a guardianship is necessary, it will issue an order appointing a guardian, who must take an oath to perform their duties faithfully and honestly. The court may require bond to be posted by the guardian as well. If no bond is required, the guardian may have to account to the court regarding the finances and well-being of the ward.
There are legal criteria for potential guardians. For example, a person convicted of a felony involving moral turpitude may not be eligible and a minor cannot be appointed. Furthermore, the court will not appoint a guardian for a married person without the spouse’s consent or a person confined in a mental health facility unless there are extraordinary circumstances warranting the appointment.
It is important to understand that guardianship is a significant legal responsibility and should not be entered into without seeking the advice and guidance of legal counsel. Missouri’s probate courts take these proceedings very seriously and protect the rights of disabled individuals.

Eligible Individuals for the Role of Guardian

In Missouri, a legal guardian must be a person of at least 18 years of age. Such person must also have resided in Missouri for at least 60 days, or be a close relative of the incapacitated person and reside elsewhere in the United States so that said relative can act as a guardian in this state.
A person may not serve as a guardian if he or she has been adjudicated to be incapacitated or is a respondent, a person found entitled to judgment after a hearing, by a court based on an incapacity complaint. Additionally, a person must not have been convicted of a felony committing an offense involving moral turpitude as long as the offense relates thereto the responsibilities of a guardian.
If seeking a corporate guardian, such an entity must be based in Missouri and also possess either a trust company certificate or bank charter in Missouri. The court must specifically appoint a bank, corporation, or other qualified person as a guardian under circumstances relating to the incapacity status of the person or the financial circumstances of such person.

Guardian Responsibilities and Authority

The appointment of a guardian comes with a set of rights and responsibilities outlined by Missouri law. Generally, the guardian’s role is to make decisions on behalf of the ward – typically in the best interest of the ward, considering the ward’s personal circumstances. The responsibilities of a guardian are broad and complex, which means that guardians do not have unlimited responsibilities nor do they have total control. Rather, a guardian has a responsibility to gather information and make decisions based on that information, then apply their own personal values and moral judgment in making decisions on behalf of the ward.
A guardian must make decisions regarding the ward’s personal and financial affairs. As such, the guardian holds various fiduciary roles, as recognized by the Probate Code . A guardian must strive to act in the best interest of the ward and be independent in the carrying out of the guardian’s duties. The following are some of the specific rights and responsibilities of a guardian and the estate transferred to the guardian by the court:
Additionally, when making decisions on behalf of the ward, the guardian must:
A guardian does not have the legal right to:
While appointed as the guardian, the guardian cannot be removed from their role absent misconduct or when it is no longer in the best interest of the ward. Unlike other fiduciary duties, such as that of a personal representative or trustee, a guardian of the person and estate does not have a statutory method for immediate removal outside of finding misconduct. In other words, the guardian has the residual rights and duties for the duration unless there is misconduct or it is clearly in the best interest of the ward to remove the guardian.

Revoking/Changing the Guardianship Arrangement

In some cases, a legal guardian may be removed or replaced if it is in the best interests of the ward. However, it is critical to note that guardianship will continue until the ward dies or can live independently without the need for a guardian. Missouri law specifically states that prior to termination of guardianship, the court must carefully balance the rights of the adult ward and the needs of the ward.
Circumstances under which guardianship can be terminated or modified include:

Failure of the guardian to comply with the duties of the responsibilities of guardianship.
The guardian has been convicted of a felony, is insane or is otherwise deemed unfit to serve as guardian. This includes circumstances in which the guardian abuses or neglects the ward.
The guardian fails to file the required Accounts of the Guardian and other documents required by the court.
The appointment of a successor guardian or conservator.
The guardianship of the person and of the estate are not based on the same grounds – the guardian of the estate is no longer needed.
The incapacity of the ward has ended and the ward is now capable of managing his or her affairs and estate without assistance.
The guardian is a healthcare provider or facility that has been discharged from the custody of the ward.
The incapacity of the ward does not require that the guardian continue acting on behalf of the ward.

Guardianship can be breached for any of the following reasons:

The ward requests termination of the guardianship, but the Court must hold a hearing to determine that this is in the ward’s best interest.
The grounds for guardianship no longer exist.
The guardian is unfit to continue serving or has failed to perform the duties of a guardian.
The ward has been discharged from a healthcare facility.

In addition to the above circumstances, Guardianship may also be modified if it is in the best interest of the ward.
If the appointed fiduciary is unfit or has failed to perform his or her duties, the Court will determine either:

– That the fiduciary is unfit to continue serving, and will appoint a successor; or
– That the fiduciary will continue serving, but must perform his or her duties with greater oversight and accountability.

While a legal guardian in Missouri appointment is not permanent, it is very difficult to dissolve or modify. It is essential to work with an attorney knowledgeable in fiduciary law.

Legal Aid and Guidance

When considering or navigating through a legal guardianship in Missouri, it is important to be aware of the various resources and support available to assist those involved. For individuals seeking additional information on guardianship processes or desiring legal counsel, there are several statewide organizations that offer comprehensive legal aid services. Legal Aid of Western Missouri (phone: (816) 474-9868) provides free civil legal services to those who qualify based on income in 87 counties throughout the state. In addition to Legal Aid, the Missouri Office of Pro Bono will help match individuals seeking legal assistance with a private attorney, as well as provide a wide range of online resources for legal research. Additionally, The Missouri Guardianship Association is an organized group of local, professional Guardianship and Conservatorship Associations that provides education and networking opportunities to help individuals become informed advocates for themselves, their families and their clients .
There are many community support services available to assist those involved with a legal guardianship. Family Self-Sufficiency is a program dedicated to helping families achieve greater independence through resources and opportunities that connect them with community organizations that provide employment, job training, childcare and other forms of financial funding. For Seniors, the Missouri Department of Health and Senior Services is dedicated to serving older adults by linking them to the highest quality services and providing resources for better health. Finally, the Exchange Club Family Center is another organization dedicated to building a stronger community by providing a powerful support network for families in both Jackson and Lafayette County.