Guardianship in Missouri
A guardian is a person who has been appointed by the court to have care and custody of a child or an adult who has been determined by a court to be incapacitated. Before appointing a guardian, the court must first determine incapacity. Incapacitated is defined as:
“One who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person, even with appropriate services and assistive technology, lacks capacity to manage the person's essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.”
The guardian of the incapacitated person, also known as a ward, must make decisions relative to the ward’s care, treatment, shelter, education and support. Some examples of this is where the ward lives and which doctor the ward will see. The guardian usually provides financially as well.
Anyone can petition the court for guardianship. When it comes to children under the age of 18, a parent has first priority. For children over the age of 14 with no qualified living parent, a court will consider a person chosen by the minor unless the appointment is contrary to the minor’s best interest. For incapacitated adults, the guardian can be chosen by the adult if, at the time of hearing, the adult is able to communicate a reasonable choice. If unable to choose the guardian, the court will look at whether there is a durable power of attorney or any other document that may have been signed by the incapacitated person and signed my witnesses. If this does not exist, family members can petition to become guardian, or any other eligible person or organization qualified to serve.
Because a guardianship restricts the ward’s freedom, before appointing a guardian, the court shall consider whether the individual’s needs may be met without the necessity of the appointment of a guardian by a less restrictive alternative. There are many alternatives to guardianship.
If you are considering filing for guardianship, a petition must be filed in the probate division of the circuit court in the county where the incapacitated person lives. The petition must state in detail why a guardian is needed. All interested parties must then be served with the petition. Interested persons are typically family members. Anyone can object to a guardianship. Either way, a hearing will be held to take up the petition and objections, if any.
If you are seeking a guardianship, we can help. Call us at 816-774-1107 to schedule a consult.
