Chapter 7 Powers and Duties of Guardian of Person

• Library: Guardianships and Conservatorships (2020 Ed.)

CHAPTER 7

POWERS AND DUTIES OF GUARDIAN OF PERSON

A. Powers and Duties

“A guardian or limited guardian of an incapacitated person shall act in the best interest of the ward.” Section 475.120.2, RSMo Supp. 2019. The guardian must take charge of the person of the ward and provide for the ward’s care, treatment, habilitation, education, support, and maintenance. Section 475.120.3. The guardian’s powers and duties include, but are not limited to, the following:

(1) Assure that the ward resides in the best and least restrictive setting reasonably available;

(2) Assure that the ward receives medical care and other services that are needed;

(3) Promote and protect the care, comfort, safety, health, and welfare of the ward;

(4) Provide required consents on behalf of the ward;

(5) [E]xercise all powers and discharge all duties necessary or proper to implement the provisions of this section.

Section 475.120.3.

A guardian of an adult or minor ward is not obligated by virtue of such guardian’s appointment to use the guardian’s own financial resources for the support of the ward. If the ward’s estate and available public benefits are inadequate for the proper care of the ward, the guardian or conservator may apply to the county commission pursuant to section 475.370.

Section 475.120.4.

Unless a ward has previously stated otherwise, a guardian may execute a preneed funeral contract, including cremation, or purchase an irrevocable life insurance policy for the same purpose. Section 475.120.9. This does not preclude family of the ward from exercising their rights of sepulcher pursuant to § 194.119, RSMo 2016, but if a family has not done so within ten days from the date of death of the ward, the guardian may exercise this right. Id. The guardian shall not be personally liable for the costs of the services. Id.

In an effort to include the ward in decisions to the fullest extent possible, § 475.120.10 was added in 2018 directing the guardian to make decisions about the ward’s care only as necessitated by the ward’s limitations, and to include the ward in decisions as often as possible. This section of the statutes aligns with the national trend toward supported decision making of incapacitated persons.

B. Limitations on Powers of a Guardian

In a limited guardianship, the guardian’s powers and duties are limited to those enumerated in the court’s adjudication order or any later modifying order. Section 475.120.2, RSMo Supp. 2019.

Various personal rights of the ward may not be abridged by the guardian. Without intending to be all-inclusive, the following is a list of some of these rights:

· The right of a female not to be sterilized

· The right of a ward to make a will if the ward has sufficient capacity

· The right of a ward to condone the misconduct of the ward’s spouse

· The various constitutional guarantees concerning the ward’s life, liberty, and property

See In re M.K.R., 515 S.W.2d 467 (Mo. banc 1974); § 475.361.4, RSMo Supp. 2019. Some limitations on a guardian’s powers are alterable upon condition.

A guardian may not authorize electroconvulsive therapy or psychosurgery on the ward unless the court orders it after a full evidentiary hearing as prescribed by §§ 630.130 and 630.133, RSMo 2016.

A guardian does not have the authority to admit the ward to a mental health or intellectual disability facility for more than 30 days for any purpose without a court order. Section 475.120.5. The court order may be obtained under § 475.121, RSMo 2016, under which the guardian files an application...