Section 13.22 Limitations on Powers of a Guardian

• Library: Estate Administration 2014 Supp

B. (§13.22) 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 2000.

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

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, RSMo Supp. 2008, and § 630.133, RSMo 2000.

· A guardian does not have authority to admit the ward to a mental health or mental retardation 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 2000, under which the guardian files an application alleging that admission of the ward to a mental health or mental retardation facility is appropriate and in the best interests of the ward. The application must “be accompanied by a physician’s statement setting forth the factual basis for the need for continued admission including a statement of the ward’s current diagnosis, plan of care, treatment or habilitation and the probable duration of the admission.” Section 475.121.1.

If the court finds that the application establishes the need for inpatient care, habilitation or treatment of the ward in a mental health or mental retardation facility without the adduction of further evidence, it shall issue an order authorizing the guardian to admit the ward to such facility in accordance with the provisions of section 632.120, RSMo, or section 633.120, RSMo.

Section 475.121.2.

“The court may, in its discretion, appoint an attorney to represent the ward. The attorney shall meet with the ward and may request a hearing on the application.” Section 475.121.3. “If there is no request for [a] hearing, the court may rule on the application without a hearing.” Id. If a hearing is requested, the court sets the application for hearing. Id. Proceedings under § 475.121 may be combined with adjudication proceedings under § 475.075, RSMo 2000. Section 475.121.4. The attorney for the respondent is allowed a reasonable fee for services to be assessed as costs under § 475.085, RSMo 2000. Section 475.121.3.

As to medical emergencies, although a guardian is not prohibited from giving authorization for medical treatment for the ward without court order, court intervention is sometimes sought because of concerns about medical malpractice liability. But see In re Warren, 858 S.W.2d 263, 265 (Mo. App. W.D. 1993), which specifically states that, under § 475.120.3(2)–(5), a guardian does not need a court order for authority to consent to a medical procedure. Section 475.123, RSMo 2000, offers some guidance in this area. It provides that “[n]o medical or surgical procedure shall be performed on any ward unless consent is obtained from the guardian of his person.” Section 475.123.1. But “[i]f the life of the ward is threatened and there is not time to obtain consent, a medical or surgical procedure may be performed without consent after the medical necessity for the procedure has been documented in the medical record of the ward.” Section 475.123.2.

If the life of any person is threatened and that person’s consent is unobtainable, a court, upon...