Guardianships in Missouri- What You Need to Know

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.

Related Post: Asset Protection: What is a Qualified Spousal Trust?

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.

Asset Protection: What is a Qualified Spousal Trust?

If you are a married professional, including a small business or real estate owner, or if you have creditor concerns of any kind, then you may be interested in a new Missouri law called a Qualified Spousal Trust. This trust offers creditor protection benefits for jointly owned marital assets. The lawyers at Checkett, Pauly, Bay & Morgan explain what a Qualified Spousal Trust is and who can benefit from them.

Tenants by the Entireties Properties

Tenancy by the entireties is the technical term for the joint ownership of property by spouses living in Missouri. Under Missouri law, this jointly owned property is deemed owned by the marital unit—an entity separate from either spouse alone. If one spouse has a judgment against him or her alone, the jointly owned assets are protected. 

However, if there is a judgment against both spouses, the jointly owned assets will be liable for the joint marital debt. The IRS is the only creditor whose lien can attach to a spouse’s interest in tenancy by the entireties property.

 There are disadvantages to owning property as tenants by the entireties. If both spouses pass away at the same time, then the property will be subject to probate. If one spouse dies, the survivor then owns 100% of the property outright and has no asset protection.

Individual Revocable Trusts

A husband and wife may each create their own separate revocable trust. However, a revocable trust has no asset protection benefits because you can revoke the trust and remove all the assets. Creditors can do the same.

Joint Marital Trusts

Many clients prefer a joint revocable trust. With a joint trust, both spouses create the trust and transfer assets to the trust. Typically, this joint trust serves as the primary estate planning document for many couples. Under prior Missouri law, it was unclear if joint trusts retained the asset protection benefits of tenancy by the entireties property.

What is a Qualified Spousal Trust?


The Missouri Legislature passed a new law providing that if tenancy by the entireties property is transferred to a Qualified Spousal Trust, then the trust property will have the same immunity from the claims of the separate creditors that existed if the spouses had continued to hold the property as tenants by the entireties. However, there are very exact and specific requirements to creating and enforcing a Qualified Spousal Trust, or the protection is lost.


Is a Qualified Spousal Trust for You?

A Qualified Spousal Trust can provide the best of all worlds. Your assets will be protected from your individual creditors, you will avoid probate, and you can provide for estate tax planning at the same time. If you have creditor protection concerns, you should consider a Qualified Spousal Trust. This may entail an update of your entire estate plan, but the potential benefits can be enormous.


Related Post: What is a Revocable Trust in Missouri? Our Estate Planning Attorneys Explain


Call Checkett, Pauly, Bay & Morgan in Carthage, MO

The lawyers at Checkett, Pauly, Bay & Morgan can answer your additional questions about asset protection and Qualified Spousal Trusts in Missouri. Contact us today online or by calling (417) 358-4049.

Prenuptial Agreements- When are They Needed?

We all want to protect our families and assets, and one way to do that is to sign a prenuptial agreement before getting married. 

The lawyers at Checkett, Pauly, Bay, and Morgan explain what a prenuptial agreement is and who can benefit from them.

What is a prenuptial agreement?

Antenuptial Agreements, or Prenuptial Agreements, are contracts parties enter into before marriage. More commonly called a prenup, these contracts list the assets belonging to each individual and who will retain the rights to those assets if the marriage ends.

In a marriage that ends without a prenup, the assets shared are divided equally between the two parties. If a person has substantial assets entering into a marriage, like inheritance, real estate, etc., a prenup can guarantee they will still keep those assets should the marriage end.

Why is a prenup important?

Without a prenup, a spouse has the right to nearly half of all marital assets in the case of a divorce. Also, upon the death of a spouse, the surviving spouse obtains very substantial rights under Missouri probate law. 

When a husband and wife have children from a prior marriage, the need for a prenup and the stakes involved grow substantially larger. Many contested probate cases involve children from prior marriages or children and a surviving spouse fighting over the deceased person's assets.

Who needs a prenup?

We are often asked when a client should have a prenup. At Checkett, Pauly, Bay & Morgan, we advise individuals entering into a second marriage, particularly if there are children—and especially if there are children and assets—to obtain a prenup.

Having a prenup going into the second marriage will keep spouses and their prior children from having disagreements over who should get certain assets should a divorce or death occur. 

Does a prenup have to occur before the marriage?

A postnuptial agreement is much like a prenuptial agreement but occurs after the two parties have already been married. It outlines the division of assets for each spouse should a future divorce occur.

Legal Representation in Southwest, Missouri

The lawyers at Checkett, Pauly, Bay, and Morgan can answer your additional questions about prenuptial agreements and how to draft one in Missouri. Contact us today online or by calling (417) 358-4049.

What Is a Revocable Trust in Missouri? Our Estate Planning Attorneys Explain

Having a trust as part of your estate plan is one of the most effective ways to avoid delays in probate court after you pass away. Trusts are called many things, such as a living trust, revocable trust, or revocable living trust. In today’s blog from the estate planning attorneys at Checkett, Pauly, Bay & Morgan we answer the question, “What is a revocable trust?”

Related Post: Asset Protection in Estate Planning

The Definition of a Revocable Trust

A revocable living trust is so named because you set it up and manage it during your lifetime. It’s revocable because you can change the terms of the trust at any time. A will dispurses your assets after you die, but a trust occurs before that. You have many estate planning options, and a revocable living trust is one viable choice that gives you control over who receives your assets. The key to avoiding probate altogether is to fund the trust.

The Flexibility to Manage Assets

If you want flexibility when managing your assets, a revocable living trust offers one of the best solutions. You can name anyone as your personal representative, or the executor of the trust, so long as they are over the age of 18 and judged to be of sound mind. The personal representative has the authority to manage your assets at your direction. This includes getting documents signed properly, selling property, and dispersing money from bank accounts in whatever increments you see fit.  

The Trust Agreement

Estate planning, including revocable trusts, involves three parties: The owner of the assets (you), the personal representative, and the beneficiaries who receive the assets. Your personal representative is the person who has the authority to give your assets away at your instructions. The beneficiaries are usually your family members, but they could also be organizations. 

You have the sole authority to amend, restate, or revoke the trust at any time while you’re alive. As a trustor, you can set time frames for giving your property away, such as when someone turns a certain age or only after the trust has been in place for a certain amount of time. It’s your estate, and the estate planning attorneys at Checkett, Pauly, Bay & Morgan, LLC can help you determine the best way forward.

Who needs revocable trusts?

One of the most prevalent myths about revocable trusts in Missouri is that they’re only for the rich. This is absolutely not the case.  Properly funded family trusts are the one sure way to avoid probate. A house filled with furniture and family heirlooms you want to leave to your grown children is more than worthy of a revocable trust. Consider the house’s monetary value at hundreds of thousands of dollars and the sentimental value of what’s inside of it.

Estate Planning at Checkett, Pauly, Bay & Morgan, LLC

Every person’s estate plan is different. The experienced estate planning attorneys at Checkett, Pauly, Bay & Morgan can discuss your options based on your unique situation. Contact Checkett, Pauly, Bay & Morgan or call (417) 358-4049 for more information. The first consultation is always free.