An adult who is incapacitated, which is defined as unable due to any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he is unable to provide himself with food, clothing, shelter, safety, financial management, or other care to such an extent that physical injury, illness or disease, or financial mismanagement is likely to occur, may need a guardian or conservator appointed for them. An adult who is partially incapacitated may need a limited or partial guardian or conservator to assist in those specific areas of incapacity.
Once a guardianship/conservatorship is established, the incapacitated adult is called the ward/protectee. Prior to the establishment of the guardianship/conservatorship the incapacitated adult is referred to as the Respondent.
Anyone who is “an interested person” (usually this is a relative, but may be a friend or the public administrator in some instances) may file an application/petition with the Probate Division of the Circuit Court (1) in the county where the respondent has his official residence, (2) if the respondent has no official residence, the county in which the respondent actually lives or has property, or (3) in the county or on any federal reservation within the county where the respondent or his property is found. The Probate Court judge, if satisfied that there is good reason to do so, will then set a time and place for a hearing on the application and must appoint an attorney to represent the respondent. This attorney who is appointed to represent the respondent is a Guardian ad Litem and is charged with acting in the best interest of the respondent.
Notice of the pending proceeding is to go to the respondent and all relatives listed on the petition. The Guardian ad Litem is required to visit the respondent prior to the hearing. The law provides for paying reasonable fees to Guardian ad Litem. These fees are charged to the estate of the respondent, or if the respondent has no estate, to the county. It should be kept in mind that if an individual files an application for guardianship/conservatorship and is not successful, he would be responsible for all costs in connection with the case.
In an action for the appointment of an adult guardian, the judge will decide whether the respondent needs a guardian or conservator (or both) or a limited guardian or limited conservator (or both). In order to make that decision, the judge will consider, among other things:
1. Whether the respondent is capable of living independently;
2. The degree to which the respondent can live independently;
3. Whether the respondent can take care of himself; and
4. Whether the respondent can properly take care of his own money and property.
Generally speaking, the person filing the request for appointment of a guardian/conservator must also file a doctor’s letter setting forth the Respondent’s diagnosis and the doctor’s evaluation of how it adversely impacts the Respondent’s ability to care for himself.
Because the appointment of a guardian/conservator for an adult will result in the loss of the ability to make many of their own day to day decisions (for example, loss of ability to enter into contracts, loss of ability to drive, loss of ability to vote, loss of ability to refuse medical care), the court takes these appointments seriously and imposes significant responsibilities on guardians and conservators. These should be discussed with your Family Law or Estate Planning attorney so you understand the extent of the obligations you are undertaking.
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We are available to help you with your family law or estate planning needs in the following Missouri counties: Platte, Clay, Jackson, Buchanan, Andrew, Clinton, DeKalb, Holt, Nodaway and Ray.
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Kiske Law Office, LLC
10525 N. Ambassador Dr.
Kansas City, MO 64153
Kiske Law Office, LLC
1911 Jules St.
St. Joseph, MO 64501
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