Chapter 4 Hearing Procedures

• Library: Guardianships and Conservatorships (2020 Ed.)

CHAPTER 4

HEARING PROCEDURES

A. Time of Hearing

Section 475.075.1, RSMo Supp. 2019, directs the court to promptly set for hearing petitions for guardianship and conservatorship. Thus, a constitutionally reasonable time is implied rather than a definite period of time. In the author’s opinion, this flexibility is preferred because of the many variables in these cases.

B. Service of Process

The respondent must be served in person within a reasonable time before the hearing date. This requirement is jurisdictional and cannot be waived by any party. The service must include the following items:

· A copy of the petition

· A notice of the time and place of the hearing

· The name and address of the court-appointed counsel

· The names and addresses of witnesses who may be called to testify in support of the petition

· A copy of the respondent’s rights set forth in § 475.075.7 and .8, RSMo Supp. 2019

Section 475.075.1.

The following parties must be served with notice of the time and place of the hearing:

· The respondent’s spouse

· The respondent’s parents, if living

· The respondent’s children who are at least 18 years of age

· The respondent’s guardian or conservator (limited or otherwise, if one has been appointed)

· Any person having power to act in a fiduciary capacity with respect to any of the respondent’s financial resources

· Any person known to the petitioner to have the care and custody of the respondent

· Any co-tenants or co-depositors of the respondent

Id.

If no spouse, parent, or child is known, notice must be given to at least one of the respondent’s closest relatives who has reached 18 years of age. Id.

As of 2018, the public administrator of the jurisdiction in which the petition is filed may not be appointed guardian or conservator without first receiving notice as provided in § 475.075.3 and must be given the opportunity to participate in any hearing held, including the right to examine and cross-examine witnesses. Section 475.079.3, RSMo Supp. 2019. The public administrator may waive this notice and the opportunity to participate. Id.

All service, other than that to the respondent, is required to be sent via any manner allowed under § 472.100, RSMo 2016. For respondents, proof of personal service must be provided to the court. In Born v. Banas, 450 S.W.3d 503 (Mo. App. E.D. 2014), the court voided the appointment of a guardian and conservator ad litem because there was no record that the respondent was ever personally served notice of the emergency petition. Thus, the trial court had no personal jurisdiction over the respondent and the appointment of the guardian and conservator ad litem was void. Id.

Even though a respondent may be located outside of Missouri—e.g., in a Kansas hospital or nursing home—as long as the respondent is a Missouri resident, the respondent may be served outside Missouri under Rules 54.07 and 54.14, and the court will acquire in personam jurisdiction. See Milliken v. Meyer, 311 U.S. 457 (1940). Service of process in a case that was dismissed for want of proper venue was not sufficient to confer on the circuit court jurisdiction over the alleged ward/protectee. Scott v. Scott, 882 S.W.2d 295, 297 (Mo. App. E.D. 1994). In Scott, personal service of notice of the guardianship hearing was not waived by the appearance of the court-appointed counsel. Id. at 297.

Personal service of a petition for conservatorship and notice upon the alleged disabled person is jurisdictional and mandatory for the appointment of a conservator or a conservator ad litem. Werner v. Wright, 737 S.W.2d 761 (Mo. App. W.D. 1987).

As an illustration of how crucial valid personal service is, see In re Estate of Scott, 932 S.W.2d 413 (Mo. App. E.D. 1996), in which the court held that, when an order appointing a guardian and conservator ad litem was void for want of jurisdiction because of the lack of personal service, a later order allowing fees and costs was also void.

In Flair v. Campbell, 44 S.W.3d 444 (Mo. App. W.D. 2001), there is an extensive discussion of the requirements for service of process, especially when there is a potential for loss of individual liberty. In Campbell, a niece petitioned the court to be appointed guardian and conservator of her aunt. A private process server made service of process to the aunt. The Circuit Court of Pettis County found the aunt to be partially disabled and appointed the public administrator as conservator of the aunt’s estate.

The lack of personal jurisdiction was raised for the first time on appeal. The Western District held, “When a person’s competence is being determined, a decision that may result in . . . loss of control over living accommodations, financial arrangements, and property, that person’s fundamental rights must be protected by the judicial system.” Campbell, 44 S.W.3d at 454 (quoting In re Jessee, 744 S.W.2d 514, 516 (Mo. App. W.D. 1988)). In Campbell, the Western District found that there was no waiver of the notice requirement of § 475.075 (personal service by the sheriff) by the alleged incapacitated person. The trial court’s order was reversed, and the matter for was remanded for lack of personal jurisdiction. The court warns those individuals who serve petitions by private process servers that they do so at their own risk. Id. at 452 n.5.

The appointment of a guardian and conservator is void due to the lack of personal jurisdiction when there is no record that the respondent was personally served notice of an emergency petition for the appointment of a guardian ad litem. Born, 450 S.W.3d at 505.

In In re Duvall, 178 S.W.3d 617, 629 (Mo. App. W.D. 2005), DHSS filed a petition for the appointment of a guardian and conservator of an elderly ward. The service of process was made by leaving the petition with “her social services person,” rather than the ward herself, who was incoherent. The Western District upheld the service of process and further held that the issue of improper service could only be raised by the ward, whose counsel expressly waived any possible defects in service.

C. Attorney for Respondent

Immediately upon the filing of the petition, the court is required to appoint an attorney to represent the respondent in the proceeding. Section 475.075.4, RSMo Supp. 2019. The attorney must visit with the client at least 24 hours before the hearing. Id. If the client is capable of understanding the matter in question or of contributing to the advancement of the client’s interests, the attorney must obtain from the client all possible aid. Id. If the disability of a client compels the attorney to make decisions for the client, the attorney must consider all prevailing circumstances and act with care to safeguard and advance the interests of the client. Id. “The court shall allow a reasonable attorney’s fee for the services rendered, to be taxed as costs of the proceeding. The court-appointed attorney may be permitted to withdraw if the respondent employs private counsel who enters an appearance on behalf of [the respondent].” Section 475.075.5.

If the court enters an order appointing an attorney for the respondent, the attorney shall have the right to obtain medical and financial information on behalf of the respondent. Id. No third party shall be liable for releasing medical or financial information to the court-appointed attorney. Id.

The court-appointed attorney cannot also be the guardian or conservator ad litem during the pendency of the matter. Only upon or after the final adjudication may they be so appointed. Id.

Appointed or private counsel must act as an advocate for the respondent. In re Link, 713 S.W.2d 487, 496 (Mo. banc 1986). Link also holds that, unless expressly authorized by the respondent, counsel may not “waive a substantial right of a client who understands the nature of the action.” Id. at 496. On the other hand, respondent’s counsel must make such fundamental decisions for a client who cannot comprehend the nature of the action, and counsel may, on behalf of the incapacitated client, exercise or waive rights granted under § 475.075.10 when those actions will advance the client’s best interests. In re Conservatorship Estate of Moehlenpah, 763 S.W.2d 249, 258 (Mo. App. E.D. 1988). In either event, the trial court must ascertain from counsel whether the decision to exercise or waive a right is the client’s own choice or a product of counsel’s best judgment and then must determine for itself, by speaking directly with the respondent or having the respondent examined under § 475.075.6, whether the respondent, in fact, wishes to exercise or waive a right and is capable of making a knowing and intelligent decision.

Counsel representing respondents should be ever mindful of the importance of laying a proper foundation for whether the respondent is exercising or waiving these rights. All attorneys should be sure they put evidence into the record clearly stating actions on these rights on behalf of their respective client in order to ensure the order of the court is secure and will not be overturned for failure to follow the proper procedural and due process rules.

Link also holds that, in exercising its discretion whether to permit appointed counsel to withdraw in favor of private counsel, the trial court, with the assistance of appointed counsel’s investigation, must determine whether employment of private counsel is consistent with the respondent’s wishes or, if the respondent is incapable of making that decision, whether private counsel is and will remain free from outside influence. Link, 713 S.W.2d at 497.

The court of appeals held in Moehlenpah that a trial court had properly disqualified an attorney from representing the respondent when the attorney was initially hired by the respondent’s second wife, who had interests adverse to the respondent’s, and when the attorney represented the respondent’s second wife in proceedings instituted by the respondent’s children from a first marriage. Moehlenpah, 763...