As an adult child, one of the most difficult decisions you will ever have to make is the decision to pursue guardianship over a parent. Watching a parent deteriorate physically and/or mentally is painful enough. Deciding you need to step in and take control over your parent as a result of that deterioration is nothing short of heart-wrenching. The important thing to recognize if you find yourself in this situation is that failing to step in could result in serious, even life-threatening, harm to your parent. If left alone, your parent could also become the victim of predators who take advantage of vulnerable older individuals. If you are at a point where you are considering guardianship as an option, your next step should be to consult with an experienced Missouri estate planning attorney. If you decide to pursue guardianship, your estate planning attorney can help you through the legal process that follows.
What Is Guardianship?
A guardian is a person who has been appointed by a court — usually the probate division of the circuit court — to have the care and custody of a minor or of an adult person who has been legally determined to be incapacitated. In the State of Missouri, a distinction is made between a guardian and a conservator. A guardian is someone who is appointed to make decisions regarding the person whereas a conservator is someone who is appointed to make decisions regarding the estate of the person. The extent of the power granted to a guardian depends on the need of the incapacitated individual, often referred to as the “ward.” Because guardianship is considered to be the most restrictive option, a court will only consider granting a guardianship if the court is convinced that less restrictive means will be ineffective.
When Is Guardianship Warranted?
In the State of Missouri, a judge must be convinced that a potential ward (your parent in this case) is “incapacitated.” The State of Missouri defines incapacitated as follows:
“An incapacitated person is one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he [or she] lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.”
How Can an Estate Planning Attorney Help?
Once a guardian has been appointed, the guardian has a significant amount of control over the ward and/or the estate of the ward. For this reason, guardianship must be pursued through a court and the court will continue to maintain oversight over the guardian if one is appointed. The guardianship process starts with the filing of a petition in the appropriate probate court. The proposed ward must be served with a copy of the petition. In addition, close family members (spouse, adult children etc.) are also entitled to be notified that the petition has been filed. Anyone who is entitled to notification may file a written objection to the appointment of a guardian and/or to you being appointed guardian. Eventually, the court will set the matter for a hearing at which time you will have to present sufficient evidence of incapacity to convince the court to appoint a guardian. You will also have to convince the court that other, less restrictive, means will not suffice to protect your parent from being harmed and/or victimized. Clearly, there is much at stake and a number of things that can go wrong during the legal process that leads up to the appointment of a guardian. Having an experienced estate planning attorney on your side to help you prepare the petition, navigate the steps involved in the process, and present the evidence necessary for the court to approve the petition is invaluable.
If you are concerned that your parent is showing signs of incapacity and may be in need of a guardian, the best thing you can do to protect your parent is to consult with an experienced Missouri estate planning attorney about pursuing guardianship over your parent. For additional information please join us at one of our upcoming free seminars. Contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.