§9.19 Waiver of Respondent’s Rights

• Library: Elder Law Deskbook (2023 Ed.)

2. (§9.19) Waiver of Respondent’s Rights

In In re Link, 713 S.W.2d 487 (Mo. banc 1986), the Court concluded that the Missouri legislature intended in its 1983 revision of the Probate Code-Guardianship, Chapter 475, RSMo, to bolster an individual’s rights in guardianship or conservatorship proceedings but not at the expense of the individual’s best interest. The Court concluded that, for purposes of trial strategy, in some situations it may be in the respondent’s best interests to waive a right. The Court then considered what is required by § 475.075, now RSMo Supp. 2020, and the constitution for a waiver of a right to be effective. Generally, Link ruled, waivers should be affirmative and on the record. Also, Link said the trial court must determine for itself if a respondent wishes to waive a right and, if so, if the respondent is capable of making a knowing or intelligent waiver or whether counsel is warranted in acting on the respondent’s behalf. The trial court may speak directly with the respondent or have the respondent examined by a physician in reaching this decision. Though this determination may produce evidence related to competency itself, Link says that a trial court may make such a preliminary...