Guardianships are an important aspect of elder law and deal with a very serious issue. Who will care for you if you cannot take care of yourself?
Checkett, Pauly, Bay, and Morgan answer some basic questions about guardianships in Missouri.
What Is a Guardianship?
If you become disabled because of a serious physical or mental condition, someone must have the authority to make the decisions about your medical and financial needs. A guardianship occurs when a trusted person is legally appointed to make these decisions for you and act in your best interests based on your wishes.
Who Needs a Guardianship?
Typically those in need of a guardianship are elderly persons who can no longer take care of their health, financial affairs, or everyday tasks or minors who are unable to be responsible for themselves.
Some of the signs a person needs legal guardianship to include someone who cannot:
Bathe themselves, as well as perform other basic hygiene tasks
Dress themselves and wash their clothing
Manage financial affairs
Take care of their own health
Make sound decisions about health and finances
Communicate clearly
A guardianship is usually a collaboration among the court, the person’s family, and medical providers. In these cases, the legally appointed guardian makes the basic health and financial decisions that the person is no longer able to make.
What Is the Process for Guardianship in Missouri?
The guardianship process involves several people, at least one physician, two attorneys, the next of kin, and a judge who you do not know and who likely does not know you. This is a court case with all records and hearings open to the public.
First, someone hires an attorney to file a petition with the court containing your personal and financial information. The court will hear testimony in a public proceeding to decide who will be the guardian to handle your personal and financial needs. As a general rule, the court requires a certificate of incapacity from a local physician.
How is a Guardian Chosen?
If you have not assigned this role to someone through a power of attorney, a petition must be filed with the local probate court to nominate your guardian. The guardianship petition seeks to have you declared incapacitated so another person can step in and make decisions on your behalf. This person may or may not be who you would otherwise choose.
The guardianship process is in place so that a person’s physical and mental well-being are honored when they are no longer able to make sound decisions. Someone undergoing guardianship could avoid a laborious, after-the-fact process by executing a well-drafted durable power of attorney in Missouri. This happens when you choose who can act on your behalf. The goal of a power of attorney is to designate someone to make vital decisions before you become incapacitated.
What Is the Difference Between a Conservatorship and Guardianship?
In a conservatorship, the conservator only has legal power over the other person’s financial affairs and nothing else. Unlike a guardianship, they are not involved in their ward's personal life, including medical decisions and day-to-day care.
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Contact Checkett, Pauly, Bay, and Morgan
Our experienced attorneys have decades of experience dealing with both guardianships and power of attorney and can help navigate your situation. If you are looking for legal advice in Southwest Missouri, contact us today or call us at (417) 358-4049.