Practical Pointers from Practitioners: Extensive Changes Made to Missouri’s Guardianship and Conservatorship Statutes
Our attorney, Danielle Kincaid, published an article in Probate and Property Magazine for the American Bar Association about changes to Missouri’s Guardianship statute. See what she has to share below:
On June 1, 2018, Missouri’s then-Governor Eric Greitens signed 77 bills into law before officially resigning later that day. One of those bills, Senate Bill 806, included massive changes to Missouri’s outdated guardianship and conservatorship statutes, which were enacted in 1983. Missouri Senate Bill 806 amends Mo. Rev. Stat. Chapters 473, 475, and 603, effective August 28, 2018. The statutory changes affect over 31,000 guardianship and conservatorship estates pending in Missouri courts as of December 2018.
Missouri Senate Bill 806 adopts part of the spirit found in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA), such as the promotion of independence for the person under a guardianship or conservatorship, the inclusion of supported decision-making, and the requirement to use alternatives to full guardianships and conservatorships.
But Missouri Senate Bill 806 declined to incorporate some of the more meaningful provisions of UGCOPAA, including the use of person-centered language. UGCOPAA uses the terms “individual subject to a proceeding” and “individual subject to guardianship and conservatorship.” Missouri statutes retain the use of the outdated terms “disabled,” “incapacitated,” “ward,” and “protectee.”
UGCOPAA also uses the substituted decision-making standard, rather than using a best interest standard. Specifically, under UGCOPAA, a guardian or conservator is required to make the decision the guardian or conservator reasonably believes the individual under guardianship or conservatorship would make if he were able, unless doing so would unreasonably harm or endanger the welfare of the individual or would fail to preserve the resources needed to maintain the individual’s well-being and lifestyle. Missouri took a step towards the substituted decision-making standard but overall still retains the best interest standard when viewing decisions made by the guardian or conservator. A guardian or conservator in Missouri is still required to act in the best interest of the ward or protectee, but the statutory changes now require the guardian to encourage the ward or protectee to participate in decision-making to the extent possible.
The statutory changes are sweeping and include changes to the petition requirements, changes to the court-appointed attorney’s role in representing the respondent, and changes to the reporting requirements of the guardian or conservator.
A petitioner seeking guardianship or conservatorship is now required to submit to a background screening, at his own expense. Public administrators and guardians certified by a national accrediting organization are exempt from this requirement. The incapacitated person’s spouse, parents, siblings, or children over the age of 18 are also exempt from this requirement. A background screening includes a Missouri criminal record review and credit history investigation. The results of the background screening must be filed with the court at least ten days prior to the hearing.
The statutory changes now require a petitioner seeking an appointment of co-guardians to provide a statement of the reasons for co-guardianship and whether the co-guardians may act independently, together, or together only for certain matters. The petition for guardianship and conservatorship must specifically state reasons, incidents, and behaviors of the alleged incapacitated person to demonstrate why a guardian or conservator is needed. The petition must now also state the existence of and provide notice to co-depositors and co-tenants who jointly own assets with the alleged incapacitated person.
Missouri Senate Bill 806 also clarifies the role of the court-appointed attorney. Upon the filing of a petition for guardianship or conservatorship, the court must immediately appoint an attorney for the alleged incapacitated person. The attorney shall not serve as guardian ad litem or conservator ad litem for the person during the pending guardianship or conservatorship matter. The statutory changes now require the court-appointed attorney to meet her client at least 24 hours prior to the guardianship or conservatorship hearing; the court may waive this requirement upon the showing of good cause. The court-appointed attorney now specifically has the right to review all financial and medical information of her client without obtaining express permission from her client or subpoenaing such records.
In an effort to move towards alternatives to guardianship or conservatorship, the statutory changes direct the court to consider whether the alleged incapacitated person’s needs can be met through means other than a full guardianship or conservatorship. Seven less restrictive alternatives are listed in the statutes: use of an attorney-in-fact under a durable power of attorney, management of funds through a trust, use of a representative payee (or Veterans Affairs fiduciary), supportive decision-making agreements (although those are not defined in the statute), use of assistive technology, appointment of a temporary emergency conservator or guardian, or the appointment of a limited conservator or guardian.
One interesting addition to the statutes is Mo. Rev. Stat. § 475.361.4, which provides that the “appointment of a guardian is not a determination that the ward lacks testamentary capacity.” Although the statutory change now permits a ward to execute testamentary documents, if a ward makes a non-traditional disposition of her assets, a petitioner seeking to void the testamentary document would certainly use the existence of the guardianship to support his claim. If a ward has testamentary capacity, the court, the ward, and the petitioner may be better advised in many situations to encourage the ward to execute a durable power of attorney and avoid guardianship and conservatorship altogether.
Another major change to the statutes relates to the reporting requirements of the guardian and conservator. The statutory changes increase the conservator’s ability to settle, abandon, or compromise a claim of the estate from $1,000 to $5,000 without court approval. Effective August 28, 2019 (one year after the enactment of the statutory changes), the guardian’s annual report will require a synopsis of the guardian’s visits with the ward, the ward’s activities, and the ward’s participation in decision-making. The guardian will also be required to provide the court with a summarized support plan, treatment plan, or plan of care for the upcoming year.
Any Missouri attorney who practices in the area of guardianship and conservatorship would be well-advised to read Missouri Senate Bill 806 in its entirety and become familiar with the significant changes made to the Missouri guardianship and conservatorship statutes. Although the changes do not fully adopt UGCOPAA, they are a step in the right direction to allow as much independence as possible to the individual under a guardianship or conservatorship.