Section 12.54 Drafting Committee Comments to § 404.550, RSMo 1989

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L. (§12.54) Drafting Committee Comments to § 404.550, RSMo 1989

Comment to § 404.550, RSMo 1989, prepared by The Missouri Bar’s Subcommittee on Adult Custodian Law, which drafted the Missouri Personal Custodian Law and the 1989 amendments to it.

This section follows § 404.051, RSMo 1986, of the minors custodian law, except that for non-incapacitated beneficiaries the personal custodian must pay over so much of the income and principal as and when the beneficiary directs under § 404.550.2, RSMo 1986. The personal custodian must also follow the non-incapacitated beneficiary’s investment and other directions and the provisions of any contract with the beneficiary. See §§ 404.420.2, 404.430, 404.550.5, and 404.550.12, RSMo 1986.

Specific authority is provided in § 404.550.3(2), RSMo 1986, for the personal custodian, an adult member of the minor’s family or any interested person, to seek a declaration from the court as to the legal disability or lack of legal capacity of a beneficiary of a personal custodianship. This is important to the personal custodian as his duties and responsibilities change on the occurrence of legal incapacity. However, it will not be any greater problem under this law than it is today for all manner of transactions executed by adults who may or may not be incapacitated. It is not contemplated that such a declaration would automatically lead to court appointment of a conservator or guardian unless other factors would warrant such appointment. The existence of a comprehensive and well managed personal custodianship would be one factor that would tend to avoid the necessity for appointment of a conservator or guardian. A beneficiary could also initiate a proceeding to determine capacity in order to force the personal custodian to follow the...