At some point in your life you may find yourself faced with the realization that a parent, or other adult family member or loved one, has reached a point at which he/she is no longer able to safely care for himself/herself and/or make financial decisions. This physical and/or mental deterioration may be the result of the natural aging process, a serious illness or accident, or even an age related dementia disease such as Alzheimer’s. If the individual is your parent, admitting that something needs to be done may be extremely difficult; however, failing to act could put your loved one at risk of serious injury and/or victimization by unscrupulous criminals who prey on the disabled and elderly. Guardianship or Conservatorship may be the best option for both you and your loved one. Because seeking a guardianship and/or conservatorship is a serious matter, the pursuant of which can become complicated, it is in your best interest to discuss your options with your Missouri estate planning attorney. In the meantime, however, it may help to educate yourself regarding what an adult guardianship entails in Missouri.
When Should Guardianship Be Considered?
An adult who is of “sound mind and body” is responsible for caring for himself/herself and for making his/her own decisions regarding day to day matters as well as making financial decisions that relate to the individual’s assets and estate property. Sometimes, however, an adult suffers from temporary or permanent incapacity that prevents him/her from being able to make those decisions and/or care for himself/herself safely. Most of us realize that at some point, for example, our parents will need help as the aging process catches up with them. What form that “help” takes, however, depends on the extent of the incapacity. Guardianship and/or conservatorship is considered the most drastic and restrictive of the options. For that reason, guardianship/conservatorship is generally only considered when a court is convinced that less restrictive measures will not suffice. In other words, if you parent only needs help keeping up with the yardwork, or running weekly errands, guardianship is not the answer. If you are concerned that your adult loved one is in danger of serious physical injury or is unable to handle his/her financial affairs without dire consequences, it might be time to consider adult guardianship and/or conservatorship.
What Is a Guardian?
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.”
How Does Missouri Define “Incapacity?”
In order for a court to consider a petition for guardianship the court must be convinced that the proposed ward 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.”
What Should You Do If You Think Guardianship Is Necessary?
You may be reluctant to take such a big step. If so, your reluctance is understandable; however, it could also be dangerous. If you are concerned enough about a parent, or other loved one, to be considering guardianship as an option it is time to consult with an experienced Missouri estate planning attorney. Your estate planning attorney can evaluate the situation and provide you with other options if relevant or help get you started with your petition for guardianship.
If you have additional questions or concerns about adult guardianship, or you wish to get started with your petition to become a guardian, contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.