If an adult (a person over the age of 17) becomes incapable of managing their own affairs and their needs are not otherwise being met, the appointment of a Guardian of the person or Conservator of the estate, or both, may become necessary.
APPOINTMENT OF A CONSERVATOR.
A conservator can be appointed only if the adult is disabled. A person is disabled if they are unable, by reason of any physical or mental or cognitive condition, to receive and evaluate the person’s financial resources. Management of financial resources are: those actions necessary to manage and dispose of real and personal property or income; those actions necessary to prevent waste, loss or dissipation of property; or those actions necessary to provide for the care and support of such person or anyone legally dependent upon such person by a person of ordinary skills and intelligence commensurate with his or her training and education. The person for whom a conservator is appointed is referred to as a “protectee.”
APPOINTMENT OF A GUARDIAN.
A guardian can be appointed only if an adult is incapacitated. A person is incapacitated if they are unable, by reason of any physical or mental condition, to receive and evaluate information or to communicate decisions to such an extent that he or she lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. The person for whom a guardian is appointed is referred to as a “ward.”
The court can decide that a person needs a guardian or a conservator or both. The court can also determine that a person is only partially incapacitated or disabled, in which case the court may appoint a guardian or conservator with limited powers. The guardian and the conservator have different roles and thus different persons can be appointed for each position. However, that is often inconvenient, because financial decisions and care decisions must be coordinated. Thus, the most usual outcome is the appointment of one person as both guardian and conservator, if both are needed.
THE PROCESS BEFORE TRIAL.
The appointment of a guardian or conservator is initiated by the filing of a “petition” (application) in the Probate Division of the Circuit Court in the County in which the adult resides. The person filing the action is referred to as the “petitioner”, and the adult for whom the appointment is sought is referred to as the “respondent”. The petition is similar to the initial pleading in any civil suit, in that it sets out the facts essential to the action, identifies the necessary parties, states the reasons that a guardianship or conservatorship is being sought, and names the person or persons whom the petitioner is asking the court to appoint as guardian or conservator. The petitioner can be any “interested person”, a term that is broadly interpreted. The petitioner must be represented by an attorney who drafts the petition and files it with the court. The petitioner’s attorney’s fee and the court costs are initially advanced by the petitioner, but may be reimbursed from the protectee’s assets upon application to the court. The minimum attorney fees required in advance would normally be $1,500. Normal court costs would be $112. Special process server fees could be $30-$50. However, these fees could be greater if the case is resisted vigorously by the respondent. Once the petition is filed with the court, the court issues a “Notice to the Respondent” which must be personally “served” (delivered) to the Respondent (the person for whom a guardian or conservator is being sought) along with a copy of the Petition, by a sheriff’s deputy or a special process server chosen by the attorney. The notice advises the respondent that:
- A hearing will be held at a date, time, and place set forth in the notice.
- That an attorney whose name, address, and phone number is contained in the notice, has been appointed to represent them. (They can also hire counsel of their choosing).
- They have the right to:
- a jury trial (which must be affirmatively waived if not desired);
- to present evidence in your own behalf;
- to cross-examine witnesses who testify against you;
- to remain silent;
- to have the hearing opened or closed to the public, as they elect;
- a hearing conducted in accordance with the rules of evidence in civil proceedings, (except for specific modifications in th Probate Code);
- to be present at the hearing, if they so desire. (Attendance is not required and is often waived.)
The court appointed attorney (GAL) must meet with the respondent at least 24 hours prior to the hearing. If the respondent is objecting to the appointment, the attorney is required to be an advocate for the respondent, not an advisor to the Court. However, most attorneys realize that these are special circumstances and will advise the client if they feel that resistance is not in the client’s best interest. Even if the attorney and the respondent agree that a conservator or guardian is necessary, the attorney may advocate for the respondent regarding limitations on the guardian or conservator’s powers, nomination of the person to be appointed, or determination of the proper placement of the respondent. The attorney can, without neglecting his obligation to the client, facilitate the process by waiving certain evidentiary rules, by being judicious in the use of cross examination, and by stipulating to the admission of documentary evidence. The attorney for the respondent is entitled to a reasonable fee paid from the assets of the respondent. In a case that need not be vigorously contested, the appointed attorney’s fee will be from $100-$300, depending on the time spent and the distance traveled to meet with the respondent. This fee must be approved by the court.
The hearing will be scheduled from 10-30 days from the filing of the petition depending on the courts preferences and the hearing dates available. The first (and perhaps only) hearing will be scheduled on a day that is set aside for routine matters in front of a judge only. If it appears that there will be lengthy testimony or many witnesses the final hearing may be postponed until a day when the court has sufficient time to hear all the evidence. The most common outcome is for the case to be heard on the day set out in the notice and for the hearing to last 30 minutes to an hour. If the hearing is to be postponed and the respondent’s condition is such that an emergency exists, presenting substantial risk that serious physical harm will occur to the respondent or that irreparable damage will occur to the respondent’s property because of respondent’s inability to provide for their
own essential human needs, or to protect their property, the appointment of a guardian or conservator “ad litem” (pending litigation) may be sought. This relief cannot be granted until the respondent has been served with the Notice to the Respondent and an attorney has been appointed. A hearing must be held and evidence sufficient to support the petition must be presented. The hearing may be by phone if the attorneys agree. Evidence submitted would usually be a doctor’s report or affidavit from persons having knowledge of the respondent’s condition. If the respondent is demanding a vigorous defense, a “live” hearing, with evidence presented using the rules of evidence, may be required. In addition to the notice to the Respondent, notice of hearing must be given to all of the following persons:
- All living children;
- Closest known relatives;
- Any adults living with the alleged incapacitated person;
- Any agent appointed in any durable power of attorney;
- The trustees of any trust of which the respondent is a trustor/grantor or qualified beneficiary, trustee or co-trustee; and
- Any known co-depositers or co-tenants of accounts at financial institutions or of other property.
At the hearing, the petitioner has the burden of proving disability or incapacity by “clear and convincing evidence.” The law does not require medical or other expert opinions, but some judges require it and it is obviously persuasive. However, in many cases, the case is decided based on anecdotal evidence of the respondent’s inability to meet their own needs or manage their finances. HIPPA and the principle of doctor-patient confidentiality may make it impossible to obtain medical records, physicians evaluation, or other records. If the Petitioner has a Durable Power of Attorney, they may be able to request and receive such records as an agent of the Respondent. However, those records cannot be admitted as evidence over the objections of the Respondent because of the doctor patient testimonial privilege. In such cases, if the anecdotal evidence seems insufficient or if the case is being resisted by the respondent, the petitioner can request a “court ordered examination” by a physician, licensed psychologist, or other appropriate professional. A copy of the examination report is provided to the court and to the attorneys for all parties.
APPOINTMENT OF GUARDIAN OR CONSERVATOR.
If the petitioner is successful at the trial, the court appoints a guardian or conservator for the protectee. Although the petition states who the petitioner requests be appointed, Missouri statutes provides a statutory priority for determining who will be appointed. They are:
(1) Any eligible person nominated by the Respondent, if the Respondent is, at the time of the hearing, able to make and communicate a reasonable choice.
(2) Any eligible person nominated in a durable power of attorney executed by Respondent, or in a separate written nomination signed by the Respondent and witnessed by two witnesses before the inception of the person’s incapacity or disability.
(3) The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person.
(4) Any other eligible person.
These “priorities” are not absolutely binding on the court and the court can appoint any eligible person (whether or not the application for appointment has been made by that person). If the respondent’s nominee seems inappropriate, or if there are conflicts within the family, the court often appoints the Public Administrator. The document signed by the court appointing the Guardian or Conservator are known as “Letters of
Guardianship and or Guardianship.” The law provides for publication of the notice of appointment of a Conservator. However, this requirement can be, and is usually, waived by the court.
POWERS AND DUTIES OF A GUARDIAN.
A guardian of the person is responsible for the ward’s care, treatment, habilitation, support, and maintenance. It is their duty to:
- Assure that the ward resides in the best and least restrictive setting and circumstances reasonably available that allows the incapacitated person to live, learn, and work with minimum restrictions on the person.
- Assure that the ward receives medical care and other services that are needed.
- Promote and protect the care, comfort, safety, health, and welfare of the ward.
- Provide required consents on behalf of the ward.
The guardian does not have the power or authority as guardian to admit the ward to a mental health
or mental retardation facility for more than thirty (30) days without permission from the court. They
do have authority to admit the ward to a nursing facility or other care facility involuntarily. No medical care can be administered to a ward without the consent of the guardian. This consent may be in the form of directions given in anticipation of needed care or given as circumstances require. EMERGENCY CARE can be provided without the guardian’s consent. Artificially supplied nutrition or hydration, or medical care necessary to preserve life cannot be withheld or withdrawn without CLEAR AND CONVINCING EVIDENCE (for example, by health care directive) of the patient’s wishes. The guardian cannot speculate as to the wishes of the ward. In the absence of clear and convincing evidence of the protectee’s wishes, the guardian may withhold or withdraw medical care, if such action is not clearly going to result in the death of the ward, if such action is in the best interest of the ward. The term, “best interest” is not clearly prescribed by Missouri law but other authorities have described the guardian’s responsibility as follows:
In assessing whether a procedure or course of treatment would be in a patient’s best interest, the (guardian) must take into account such factors as
the relief of suffering, the preservation or restoration of functioning, and the quality as well as the extent of life sustained. An accurate assessment will
encompass consideration of the satisfaction of present desires, the opportunities for future satisfaction, and the possibility of developing or
regaining the capacity for self-determination. One Missouri Appellate Court has held that a guardian may consent to a “Do Not Resuscitate (DNR)” order where the only medical advice was that such an order was in the best interest of the protectee, notwithstanding that failure to resuscitate would result in the protectee’s death. Any refusal of care should be documented by medical advice that such decision is in the “best interest”
of the protectee.
POWERS AND DUTIES OF A CONSERVATOR.
The conservator of the estate is responsible for taking possession of all of the protectee’s real and
personal property, rents, income and profits from property, and proceeds from the sale, mortgage,
or lease of property. These are referred to as the protectee’s estate. You are also responsible for
prosecuting and defending any actions instituted on behalf of or against the protectee and for
collecting all debts due or becoming due for the protectee.
A conservator has the power, without authorization by the court, to:
- Settle or compromise a claim against the protectee or the estate of up to $5,000.00;
- Settle, abandon or compromise a claim in favor of the estate which does not exceed $5,000.00;
- Receive additions to the estate;
- Sell, or agree to sell, chattels, choices in action and investment securities reasonably worth not more than $5,000.00 for cash, or upon terms involving a reasonable extension of credit;
- Exchange, or agree to exchange, chattels, choices in action and investment securities for other such property of equivalent value, not in excess of $1,000.00;
- Insure or contract for insurance of property of the estate against fire, theft and other hazards;
- Insure or contract for insurance protecting the protectee against any liability likely to be incurred, including medical and hospital expenses, and protecting the conservator against liability to third parties arising from acts or omissions connected with possession or management of the estate;
- Contract for needed repairs and maintenance of property of the estate;
- Lease land and buildings for terms not exceeding one year for reasonable rents, and renew any such lease for a like term;
- Vote corporate stock in person or by general or limited proxy; and
- Contract for the provision of board, lodging, education, medical care, or necessaries of the protectee for periods not exceeding one year, and renew any such contract for a like period;
- Deposit funds in a bank;
- Pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate.
- Prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets;
- Execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the conservator;
Except for these actions which are specifically authorized without court approval, the Conservator must seek the court’s approval to expend funds, obligate the estate of the protectee by contract, or to dispose of property. For example, the court’s permission is required to sell any real estate, to sell personal property in excess of $5,000.00, or to lease the protectee’s property for a term exceeding one year, or to purchase a pre-paid burial plan.
DEATH OF THE PROTECTEE.
The conservator’s authority over the protectee’s affairs terminates at the protectee’s death. The only remaining authority is to pay bills contracted to be paid while serving as conservator, pay administrative expenses, make a final accounting to the court, and to distribute the remaining assets to a personal representative or other persons entitled to receive the remaining assets. The conservator does not have any legal authority to contract for funeral expenses, make funeral arrangements, or to pay expenses of funeral or burial. Missouri law specifies the persons who are entitled to direct funeral arrangements, and payment of funeral expenses is the responsibility of the decedent’s estate. For that reason, it is best if funeral arrangements can be made by consensus of the family in advance of death, and payment can be assured by purchase of a pre-paid burial plan. The person named as the protectee’s personal representative in a will, or is otherwise eligible to serve as personal representative of the estate, may petition the court for Letters Testamentary (if there is a will), or Letters of Administration (if there is no will) which will give you authority to deal with the protectee’s post-death business affairs. There are also several informal proceedings that can be used if the probate estate is small, which could grant authority to pay bills and distribute property after protectee’s death.
CLAIMS AGAINST THE PROTECTEE’S ESTATE.
The conservator is responsible for paying claims against the estate. If the conservator knows of persons who may be owed money by the estate, the conservator has a duty to give them actual notice that a conservator of the estate has been appointed and that if they wish to be paid, they must submit a claim. The conservator may pay proper claims against the estate in an amount less than $5,000.00. The conservator may also pay any bill for goods or services provided to the protectee after the appointment and authorized by the conservator, in any amount. Payment of claims of the conservator against the estate, in any amount, must be approved by court after appointment of a guardian ad litem.
The conservator is required to file an inventory of the protectee’s property with the probate court within 30 days from the date of appointment. Our firm can assist the conservator in preparing the inventory. Household goods and furnishings need not be itemized on the inventory, but should provide a reasonable estimate of their value. All property is inventoried at the value on the date of appointment.
The conservator may invest the protectee’s money only in direct obligations of the United States, such as treasury bills or bonds, and in federally insured savings or checking accounts at banks and savings and loan associations without specific court approval. If the assets of the estate are substantial, the conservator should be insure that deposits in any one depository institution, including accrued interest, do not exceed the insured amount of $250,000.
PRESERVING THE PROTECTEE’S ESTATE PLAN.
It the conservators duty to use the assets in the protectee’s estate in a manner that will preserve the protectee’s estate plan. For example, if the protectee’s will makes a specific bequest of property, that property cannot be sold to take care of the protectee until all other available property has been used. Therefore, the conservator must determine whether the protectee has a will or trust or any codicils (amendments) to a will.
Copyright 2014 The Vickers Law Firm. Created 12-26-2014
If any of the protectee’s bank accounts, IRA accounts, brokerage accounts, or other property are owned jointly with another person, or if any of the protectee’s accounts name a pay-on-death beneficiary, or transfer-on-death beneficiary, or by any other method provide that property will pass to another person at the death of the protectee, the Conservator must obtain court permission before using these funds for the care of the protectee. If the protectee contributed all of the funds to the account, the court will normally allow the property to be used for the protectee’s care and support. However, all other available funds must first be used, and at the death of the protectee, any property remaining after payment of all claims, will be distributed to the pay-on-death beneficiary. The same rule would apply to beneficiary designations on IRA accounts, real estate subject to a beneficiary deed, motor vehicles with transfer-on-death designations or any other form or ownership designating a person other than the protectee’s residuary estate, to receive the property at the protectee’s death.
MANAGEMENT OF REAL ESTATE.
The conservator is responsible for managing the protectee’s real estate. Therefore, if the real property is insurable, the real estate should be kept insured to its full insurable value. If the property is not insurable, the conservator should consider selling it as soon as possible.
The conservator is responsible for accounting to the court for all of the income of the conservatorship estate and all expenditures at least annually. Those accounting will be required to be filed on court approved forms in a format that is unlike most commonly used financial ledgers. The conservator must also file all cancelled checks or receipts with the court, documenting each expenditure for which credit is claimed. All funds of the protectee must be segregated in separate accounts maintained for the exclusive benefit and use of the protectee’s estate. The bank will require a taxidentification number for this account. The tax-identification number for the estate is the protectee’s Social Security Number. Conservatorship estates are not required to obtain a new taxidentification number.
SOCIAL SECURITY BENEFITS.
The conservator is entitled to receive the Social Security check of the protectee. However, the conservator must contact the local Social Security Office and arrange to be named as the representative payee. The Social Security Administration may require an annual accounting from you similar to that required by the court.
ATTORNEY’S FEES AND CONSERVATOR’S FEES.
Both the conservator and the attorney are entitled to reasonable fees for services rendered to the estate. Following the filing of the inventory, the attorney will typically make an application for attorney’s fees for all services rendered through that date. If a sale of real estate is contemplated in the near future, the initial application for attorney’s fees will sometimes be deferred until those services are completed. The initial attorney’s fee for services rendered through the filing of the inventory is usually $1,500.00. If an emergency guardianship is required the fee will be an additional fee of $500 will be required. If real estate is sold, approximately $500.00 of attorney’s fees will be incurred for that process. Attorney fees for each annual accounting thereafter will vary from between $500.00 – $1,500.00 depending on the size of the settlement. All attorney’s fees must be approved by the court by an application to approve attorney’s fees before payment is made. If the estate is large enough, the attorney may charge, and the court may allow, a fee that reflects management responsibilities associated with the estate which is calculated on the amount of income of the estate. Most estates do not fall into this category. The conservator is also allowed a fee that is based largely on the value of the services rendered. The court is usually very conservative in allowing payment time and expense incurred for visits to the protectee, particularly if the protectee is a family member. A typical fee is $20.00 per hour for services rendered with the hours being conservatively calculated. Courts in different counties vary substantially in the amounts allowed for conservator’s fees and the documentation required. Mileage will normally be allowed at IRS approved rates. The purpose of this information is to give you an overview of the law regarding guardianships and conservatorships for adult protectees. Obviously, all of the applicable information cannot be condensed into a few pages.