Chapter 1 Introduction

• Library: Guardianships and Conservatorships (2020 Ed.)

CHAPTER 1

INTRODUCTION

A. Introduction and Scope of Guide

This book is intended as a comprehensive guide to Missouri’s adult guardianship and conservatorship law. The early chapters in this book covering adjudication and hearing procedures will apply to both guardianships and conservatorships unless otherwise specified. Where the requirements differ for the appointment of one or the other, either a separate chapter has been allocated to that discussion or a note within the chapter is made.

The authors will discuss the adjudication process, the formulation of a limited guardianship or conservatorship, the extent to which the civil rights of an individual are interdicted by adjudication, the preference statute on whom to appoint as guardian or conservator, the qualifications necessary of such guardian or conservator, and procedures one must follow once appointed.

While some of the procedures and processes discussed will also be applicable to guardianships and conservatorships of minors, this guide is not intended to discuss the applicability of the law to minors. It is also important to note that several circuit courts have made forms available, and in some cases mandatory, for filing a petition. Counsel should check with the court of jurisdiction where the petition will be filed to ensure they comply with local court rules.

B. History

1. No Common Law Basis

The concept of guardianship in English common law dates back to the 13th century. Under early English guardianship law, the courts, under the doctrine of parens patria (father of the country), took control of the property of adults deemed to be incapacitated due to either a lack of mental ability or mental illness. For a time, the income from property of incapacitated individuals due to a lack of mental ability was used as a revenue source for the crown. Over time, reforms led to courts overseeing the protection of incapacitated individuals and their property in order to protect the interests of the heirs of incapacitated individuals.

Missouri courts have recognized that the roots of state guardianship statutes arise from the state’s parens patria power. In re Link, 713 S.W.2d 487, 493 (Mo. 1996). But because the modern concept of guardianship and conservatorship did not exist in common law, there is no common law basis for the procedures. The concept of both is purely statutory; thus, no common law principles will be applicable in guardianship and conservatorship hearings.

Chapter 475 of the Missouri Revised Code governs these proceedings. While statutory law for guardianships and conservatorships existed earlier, it was completely overhauled in 1983. There have been several amendments to sections of Chapter 475 since then, but one of the largest revisions since the 1983 changes occurred in 2018.

2. 2018 Changes

The Third National Guardianship Summit (the “Summit”) was held in Missouri in October 2011. That summit produced a set of standards and recommendations. A national collaborative...