Chapter 3 Adjudication Process

• Library: Guardianships and Conservatorships (2020 Ed.)

CHAPTER 3

ADJUDICATION PROCESS

A. Venue

Under § 475.035, RSMo Supp. 2019, venue for the appointment of a guardian or conservator is:

· in the Missouri county of domicile of the alleged incapacitated or disabled person (respondent), § 475.035.1(1); or

· if the respondent has no Missouri domicile, in the county where the respondent has a significant connection, § 475.035.1(2).

Before 2019, the two factors above were the only guidance for courts. In 2019, the law was amended to provide factors to which a court must look when making decisions on proper venue. In determining whether a respondent has a “significant connection” to a county, the court must look to the statutory factors found in § 475.035.1(2)(a)–(2)(e):

· Whether a juvenile, criminal, or probate court in a county of this state has previously or currently assumed jurisdiction over the alleged incapacitated or disabled person under Chapter 211 or 552, RSMo

· The location of those persons required to be notified of the guardianship or conservatorship

· The location of the alleged incapacitated or disabled person’s residence or physical presence in a county, and how long the alleged incapacitated or disabled person has resided or been physically present in that location

· The location of the alleged incapacitated or disabled person’s personal property

· The location and extent to which the alleged incapacitated or disabled person has ties such as being registered to vote, a driver’s license, receipt of social services, registration(s) of personal property, or filing of local tax returns

If it appears to the court—acting on its own motion or on the petition of the guardian, conservator, or respondent—that the proceeding was commenced in the wrong county, that the domicile or residence of a person has been changed to another county, or, in the case of a conservatorship, that it would be in the best interest of a disabled person and the disabled person’s estate, the court may order the proceeding and all of its files transferred to the probate division of another county. Section 475.040, RSMo 2016. Clear and unequivocal evidence that change of venue would be in the ward’s best interest is required. State ex rel. Baumbach v. Kamp, 922 S.W.2d 411, 419 (Mo. App. S.D. 1996).

In a case decided before the codification of factors used in determining proper venue, the Supreme Court of Missouri found that the entire venue statute was one of preference, even though language indicating the preference appeared in only part of the statute. In re Beyersdorfer, 59 S.W.3d 523, 525–26 (Mo. banc 2001). See § 475.075.

Domicile is a key element in Missouri venue law, which allows the court the authority to rule on an individual matter. In In re Duvall, 178 S.W.3d 617, 631 (Mo. App. W.D. 2005), a nephew appealed the appointment of the public administrator as guardian/conservator for his aunt. Despite serious questions as to his elderly aunt’s mental capacity, the nephew undertook to write a revocable living trust for the benefit of his aunt. The aunt, a long-time resident of Randolph County, “executed” a quitclaim deed that transferred all of her real property in Randolph County to her nephew, a resident of Monroe County. The nephew and his wife quitclaimed a 98% interest in the real property to the revocable living trust that the nephew was attempting to create for the benefit of the aunt. The Missouri DHSS (Department of Health and Senior Services) later filed a petition for the appointment of a guardian/conservator in Randolph County. At the time that the petition was filed, the aunt resided in a nursing home in Monroe County.

The Probate Court of Randolph County, after notice and hearing, appointed the Randolph County Public Administrator as guardian and conservator of the aunt.

The crux of the nephew’s argument on appeal was that the Randolph County Probate Court had no statutory basis for appointing the public administrator as guardian/conservator of his aunt because, when she deeded away her property in Randolph County, her domicile changed from Randolph to Monroe County, Missouri.

The Western District held that:

In order to effectuate a change of domicile it is necessary that there shall be actual personal presence in the new place and also the present intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode. The fact of physical presence and the intention must occur . . . for . . . the change of domicile [to occur].

Id. at 631.

The Western District thus affirmed the Randolph County Probate Court’s position that the aunt did not have the requisite intent to change her domicile to Monroe County.

B. Petitioner

A loose definition of standing has been adopted in the area of guardianships and conservatorships. “Any person may file a petition for the appointment of himself or herself or some other qualified person as guardian” of an incapacitated person or as conservator of the estate of a disabled person. Section 475.060, RSMo , and § 475.061, RSMo Supp. 2019. Under § 475.050, RSMo 2018, before appointing any other eligible person, organization, or corporation as guardian or conservator, the court must consider the suitability of appointing any of the following, listed in order of priority:

· The respondent’s choice made at the time of the hearing, if the respondent is able to make and communicate a reasonable choice

· The respondent’s written choice made before the inception of the respondent’s incapacity or disability and executed when the respondent was able to make and communicate a reasonable choice

· The spouse, parents, adult children, adult brothers and sisters, and other close relatives of the respondent

· Any other eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a duly probated will of such a spouse or relative

The changes to Chapter 475 in 2018 added additional requirements for the court to consider in the appointment of a guardian or conservator, and also additional requirements for certain petitioners. The court must now look to all eligible relatives willing to serve or determine it would be in the best interest
of the respondent to not appoint a willing relative, before the court can appoint an unrelated third party. Section 475.050.2, RSMo Supp. 2019. The requirement to seek out willing and fit family members first is limited to the initial proceedings. See In re Williams, 573 S.W.3d 106 (Mo. App. W.D. 2019).

When the court takes into account the respondent’s communicated choice, it must consider the respondent’s most recent such choice. Section 475.050.3. Further, the requirement that the respondent’s written choice must have been made within five years of the filing of the petition was removed. Any written election made before the inception of the respondent’s incapacity or disability will now be considered.

As of 2018, certain petitioners must undergo a background check and submit a report to the court, which the court...