Defining Legal Guardianship
What is legal guardianship?
Legal guardianship is a formalized arrangement that grants an individual or entity (known as the guardian) the legal authority to make decisions for a minor child (the ward), typically involving their general welfare. The guardianship may include legal custody of the child, including the ability to make decisions about education, health care, and all other major aspects of the child’s life. The appointed guardian must act in the best interest of the child, and weigh the potential benefits and risks to the child of any decision made. A guardianship can be very helpful for a parent who is not able to fulfill their parenting responsibilities and has had a previous order in Missouri for legal or physical custody of the child, but has become incapacitated due to age, illness, mental incapacity, addiction, or other issues, to ensure the parent’s wishes and rights are still honored . However, a guardianship is not a substitute for adoption. An adoption order substitutes a child’s legal parents, and may even revoke a prior guardianship when the child is adopted; while a guardianship order does not replace the child’s legal parents or their rights to visitation or change of custody. In fact, a guardianship may only be ordered if the parents of the child are not willing or able to act on behalf of the child and to make critical decisions. A power of attorney is also not a substitute for a guardianship; guardianship provides for more comprehensive authority, and a legal authority that can only be terminated by a court order.
Forms of Guardianship in Missouri
In Missouri, guardianship cases may exist for either an adult or a minor. The most common type of guardianship in Missouri is for a minor. Normally, a minor requires a legal guardian in the event of the death of both natural parents or other circumstances that would cause the natural parents to no longer have custody.
In some cases, a step-parent or significant other who lives with the child may seek guardianship. A minor may also require a legal guardian for custody purposes if the natural parents are no longer married and unable to provide stable care. Since there is no formal "legal separation" in Missouri, the physical residence of the natural parents usually becomes the determining factor for the purpose of assigning custody. Missouri courts do not assign a legal guardian to a minor as a substitute for a divorce judgment, but they may grant guardianship to other persons depending on the circumstances of each case.
If a minor requires a legal guardian, the court must have jurisdiction over the proceeding before a judge can appoint the guardian. Statutory procedures apply regarding the appointment, availability, qualification and role of the guardian for the minor. Missouri law is very specific about any individual who assumes or is appointed as a legal guardian for a minor and the process for doing so.
Guardianship for adults is less common, but Missouri courts may grant an adult guardianship if it is necessary for the physical well-being of the adult. An adult may be unable to make decisions related to his or her own well-being because of a physical illness or mental condition. The inability to care for oneself or manage one’s own financial affairs does not automatically require appointment of a guardian, but Missouri statutes allow for it in certain circumstances.
In Missouri, the same general procedures apply regarding the appointment of a legal guardian for an adult as those used for the appointment of a legal guardian for a minor. The court determines the existence of incapacity on a case-by-case basis and there must be a need for setting up a legal guardianship. Courts will consider proposed alternatives to the guardianship if one is suggested. Missouri statutes include detailed provisions regarding the types of decisions that a guardian for an adult may make, and those that require court approval. Missouri guardianship statutes further describe the role of a guardian for a minor and the requirements that apply for appointment as a legal guardian in such cases.
In some states, an adult adopted person may require a guardian to provide for personal decisions or to oversee the financial affairs of the adult. Missouri law does not correlate adoption with guardianship. Adoption establishes a new family unit and does not create a legal guardianship for the purposes of providing for personal decisions or financial management of the adopted adult. An adult who requires guardianship, however, may have been adopted as a child and is now an adult. In this case, contrary to other cases, there is no competing issue of custody between the natural parents and a stepparent or other adoptee.
Establishing Guardianship
Establishing a legal guardianship in Missouri generally requires the approval of the probate division of the Missouri Circuit Court, the division of the state court responsible for cases involving the affairs of deceased persons as well as the living. The general process for obtaining guardianship of any person in Missouri is relatively similar, regardless of whether the intended ward (or incapacitated person) is an adult or a minor. For minors, the procedure is somewhat similar to that of pursuing adoption in Missouri. The guardianship of a disabled adult is somewhat similar to pursuing a conservatorship in Missouri. While there are nuances to each procedure, the general process consists of the filing of a petition, notice and hearing: Petition – The guardianship procedure generally begins with the filing of a petition in the proper probate division of the Missouri circuit court. The petition must be accompanied by a physician’s statement that establishes that the ward is unable to care for himself or herself. To establish incapacity, the likely incapacity must be at least one of the following: (1) minors under 18 years of age, (2) physically impaired but not mentally competent, (3) mentally incompetent and capable of having a guardian, or (4) legally incompetent; The petition may also be accompanied by a bond. Bond protects the estate and the guardian from malfeasance or breach of fiduciary duties that may result in damage to the finances of the estate. Notice – Notice must then be served on the alleged ward and other individuals, such as family members. If a minor, the notice must be served on the parent, guardian, or custodian. If an adult, the notice must be served on the spouse, parent, adult child, adult sibling, and any other person designated by the court. As guardianship cases are somewhat urgent, unlike adoption cases, the notice requirements are stricter than adoption notice requirements. If the intended ward is not available for service, the court may order publication. At the conclusion of the publication period, a hearing date will be set. To obtain a guardianship in Missouri, a petitioner must prove that the proposed guardian can properly care for the intended ward and that doing so would be in the ward’s best interest. Hearing – After service, the court will conduct a hearing to hear evidence from all parties and interested witnesses to help determine whether to grant the guardianship. In guardianship of minors, a report must be filed with the court and considered prior to the hearing. This report must include information that will help the court decide the best interests of the child. It will include information, including but not limited to, where the child has lived. The judge will consider this information before granting or denying the petition.
Rights and Obligations of Guardians
Within Missouri’s probate code, guardianship of an adult or minor is intended to provide "for the care, nurturing, and medical well-being of the person." The duty falls on the guardian of the person. Conversely, the guardian of the estate is someone who handles and invests the property and assets of the ward.
There may be considerable overlap between the duties of the guardians of the person and the estate. Explaining the distinction can be helpful in simplifying concepts that are otherwise complex. For example, the decisions that a guardian makes each day on behalf of a ward depends on whether the ward is a minor or an adult. With adults, the rights of minors only apply in certain circumstances. Those circumstances are described below.
When a legal guardian assumes responsibility of a minor, he or she becomes a proxy for the biological parent in all matters related to the wellbeing of the child. This includes the ability to make decisions relating to education where the guardian may enroll the child in school, pick up the child at the end of each day, and have full access to the child’s academic records. Regarding medical care, the guardian may consent to a physician’s recommended treatment plan. However, the legal guardian must make the best possible effort to have informed consent from the minor’s parent, as well. Likewise, the guardian is empowered to give consent for dental care, including but not limited to braces, caps, teeth whitening, and any other treatment that is not considered cosmetic.
While the parental rights of a biological mother or father are transferred to a legal guardian, this does not mean that the biological parent has no rights at all. The biological parent remains legally responsible for the child’s behavior, educational expenses, and medical bills. The biological parent may still request visitation rights and pursue modifications to the guardianship arrangement as appropriate.
The ability of the guardian(s) to make decisions on behalf of a minor is not absolute. A court review is required when marriage or adoption is involved. Certain legal actions involving a minor may also involve prenuptial agreements. Although a guardian has the power to act on behalf of the minor, the circumstances of certain decisions are usually recognized by the court as too sensitive or complex.
The inherent abilities that a guardian of the estate has over the minor are similar over those of a guardian of an adult. While all of the authority over the estate is given to the guardian, he or she must continue to act within the best interests of the minor. Verifying that a legal guardian is acting in his or her best interest is critical.
Again, just as in the case of the guardian of the person, the rights of the parent are not terminated upon the creation of the guardianship.
Modifying or Dissolving Guardianship
Modification or Termination of Guardianship
Modification of the Guardianship is governed by 475.130. Either the Guardian or the Ward may petition for termination of the guardianship. To petition the court to terminate a guardianship the following must be alleged and proven to the court:
(1) The incapacity of the disabled person has ceased; or
(2) It is in the best interest of the disabled person that the guardianship should be terminated .
If any person, including the Guardian, has actual knowledge of the death of a disabled person, that person shall file a report of death with the court using Form 6. At the time of filing of the report of death with the court, the Guardian shall also file a final settlement. The Guardian is not released from liability to the disabled person or the estate or any other interested person because of the death of the disabled person. There may be valid reasons to formally terminate the Guardianship so that the Guardian is released from liability.
Legal Challenges Affecting Guardianships
Legal proceedings to appoint a guardian of the person and/or estate of an incapacitated person can be fraught with complications. Often, there are complications involving family dynamics. Perhaps an adult child wishes to be appointed as guardian of the person and/or estate of the parent who has developed dementia. However, the parent’s spouse (and possibly other children of the parent and step-parent) also wishes to be appointed as guardian of the person and/or estate of the parent. In such a situation, the Court Order appointing the guardian/guardian ad litem usually provides that the guardian appointed by the court shall serve as guardian over the person (or estate) until further order of the court. This would allow the person unfairly excluded from being appointed as guardian to later request that the appointment of the first appointed guardian be revoked or modified.
Another possible complication may arise when a prospective guardian’s spouse is a social worker in the School District or State Children’s Division. A frequently seen allegation in guardianship cases is that the proposed guardian, if he/she were appointed, would have a conflict of interest and/or would abuse his/her powers or privileges to the detriment of the incapacitated person and/or his/her children. These allegations will often come from the guardian’s step-children, parents of the children whom she/he works with in the social work setting, and/or social workers whom she/he works with. Such allegations can be very damaging to the proposed guardian, so it is important that a good attorney be consulted to address such issues.
Legal Aid
With the increasing complexities of guardianship cases, it can be difficult to navigate the legal system without proper guidance. After understanding what legal guardianship entails and identifying the different types of guardianship in Missouri, you might find yourself needing to consult with an attorney to move forward.
In some instances, you may be able to get help from a legal aid organization. While these resources are not for everyone, they can sometimes provide a crucial support for guardianship cases. To locate a local legal aid organization, visit the Missouri Bar Association’s resource page here.
Another option is to look for an attorney through the Missouri Bar Association’s Referral Service. This service allows you to input the type of legal representation you need and will provide you with the contact information of several local lawyers who specialize in that field . More information about the aging process and legal representation in guardianship cases can be found here.
If you’re unable to afford an attorney, you may qualify for representation by a public defender. Attorneys from the Office of State Public Defender are sometimes appointed in cases involving guardianship. To learn more about legal representation in private guardianship cases, as well as how to apply for a public defender, visit the Missouri Office of State Public Defender’s website here.
If you are looking for an attorney that works specifically under the current Missouri law regarding guardianship issues, FamilyLawRights.net has a search tool that may be able to help you find a nearby attorney who might be able to assist in your case. Family Law Rights helps families of all types find a legal representative that can assist with their specific needs.