Chapter 2 Selecting the Least Restrictive Approach

• Library: Guardianships and Conservatorships (2020 Ed.)

CHAPTER 2

SELECTING THE LEAST RESTRICTIVE APPROACH

The typical client in these matters tells the attorney about a family member or a friend who has become a “problem” for the individual or for others. As with any case, great care must be taken in ascertaining the facts so that the approach selected will be the least restrictive alternative available. Many alternatives to full guardianship are available, and total or unlimited guardianship should be used only as a last resort.

Some of the available choices are services that the person may be willing to accept on a voluntary basis. Among these services are those offered by:

· home meal delivery programs;

· local units of the Visiting Nurse Association;

· home health aides;

· social service workers from the Missouri Department of Health and Senior Services, the Missouri Department of Mental Health, and various charitable or religious groups or hospitals; and

· group homes, boarding homes, and nursing homes.

One or more of these services might be suitable for physically handicapped or elderly persons who have some judgment and insight. A mentally ill person with judgment and insight might voluntarily accept medication and other treatment from a community mental health center. A developmentally disabled person with a reasonable amount of intellectual capacity and judgment might be able to function in an apartment or group home and hold a job with minimal assistance from a community service worker and a vocational rehabilitation center.

If the person will not seek needed assistance voluntarily, a number of involuntary approaches are available. Mentally ill people who present a likelihood of serious harm to themselves or to others may meet the criteria for involuntary civil commitment under Chapter 632, RSMo. Under these procedures, after a full array of due process hearings, the probate division may order a person into inpatient or outpatient treatment for successive periods of 21 days, 90 days, and 1 year. The goal is sufficient treatment to enable the individual to function in society as quickly and as completely as possible. No legal rights are taken away, and no guardian appointed. The commitment standard, which before 1996 was “likelihood of serious physical harm,” is now “likelihood of serious harm” to self or others. This definition, at § 632.005(10), RSMo Supp. 2019, also allows evidence of prior patterns of behavior to be used to prove dangerousness. The statute was modified in an attempt to...