Guardianship and ConservatorshipThe appointment of a guardian or conservator removes the right of a person to make his or her own decisions, therefore requiring a judge’s approval. It should be pursued only after considering other, less restrictive options. A Public Administrator appointment should be considered only as a last resort. A Public Administrator is not required to consult or inform the family of decisions. A guardianship and conservatorship removes the fundamental right of the protected person to make his or her own decisions.
Asking the court to appoint a guardian or conservator should be a last resort, after all other, less intrusive means have been examined first. The decision to seek a guardianship or conservatorship should not be based on stereotypical notions of old age, mental illness, or disability. The decision should not be made because you disagree with what an adult with diminished capacity wants to do.
What is a Guardian and Conservator
A guardian is a person or institution appointed by a court to make decisions about the personal well-being — residence, health care, nutrition, education, personal care, etc. — of an incapacitated adult, who is called a "protected person." A conservator is a person or institution appointed by the court to make decisions about a protected person's estate. The protected person's estate includes all of his or her property, business and personal. Some examples are income (such as wages, an annuity, a pension, and Social Security or other government benefits), real property (buildings and land), and personal property (furniture, cash, bank accounts, certificates of deposit, stocks, bonds, motor vehicles, and valuables such as jewelry, tools, furs and art). If the protected person needs help in some but not all areas of decision making, the court will order a limited guardianship. A limited guardianship is preferred, and the court will grant a full guardianship only if no alternative exists. A limited guardian has only those powers listed in the court order. The court can also limit the authority of a conservator.
Alternatives to Guardianship
Anyone 18 or older has the right to make decisions based on his or her values and beliefs, even if others disagree with those decisions. Making decisions is an essential part of adult life. Every day we make decisions for ourselves and for the people who depend on us. Decision making can be burdensome, even stressful at times, but few of us would willingly give up the right to make our own decisions. An adult who loses the capacity to make decisions may need special protection, and planning can help ensure that the person's preferences and values will be followed during a time of diminished capacity. The options described below present risks because the person with diminished capacity is allowing someone else to take control of his or her money, property and healthcare. These options have little or no supervision of that other person, and you are trusting that person's ethical values to do the right thing even though no one is watching. The advice of a lawyer experienced in estate planning and elder law is most important. A lawyer can advise you about steps to protect against abuse, neglect and exploitation of a person with diminished capacity.
- Arranging for Help & Services: The best course of action may be to help the person with diminished capacity make and implement their own decisions. As needed, seek out a lawyer, accountant, tax preparer, social worker or case manager to answer questions and suggest options and advice.
- Representative Payee: A representative payee is a person appointed by a government agency, such as the Social Security Administration (ssa.gov) and the Department of Veterans Affairs (va.gov), to receive and manage the money paid by that agency. To serve as the representative payee, apply to the agency that provides the benefits. In most cases in which the person with diminished capacity has an agent with power of attorney or a trustee, guardian or conservator, the agency will appoint that person as representative payee. But the agency may appoint any person as representative payee.
- Power of Attorney: A power of attorney is a legal document in which one person (called the "principal") gives to another person (the "agent," or sometimes called the "attorney in fact") authority to act on behalf of the principal. A well-written power of attorney can be a helpful legal tool to allow someone else to handle a person's financial matters without the need of more complex arrangements like a trust or a court-appointed guardian or conservator, which removes many or all of the person's decision making authority.
- Health Care Agent & Advanced Health Care Directives: You can appoint an agent to make health care decisions in the event that you no longer have the capacity to do so. Your agent should be someone you trust, who knows, understands and will honor your preferences, and who will be available if needed. An advance health care directive expresses your preferences about health care decisions and helps ensure that your decisions will be carried out, even when you are no longer able to make or communicate those decisions.
- Trusts and Savings Accounts: A special type of trust called a "special needs trust" is a useful planning tool for persons with disabilities and their families. The government benefits that a person with disabilities is entitled to receive may not be reduced because of contributions to a discretionary trust for that person. State agencies disregard a discretionary trust as a resource when determining eligibility for services or support. The State of Missouri has also created MOABLE accounts, which are easy-to-create, tax-incentivized savings accounts for disabled individuals.
- Guardianship and Conservatorship
- What is a Guardian and Conservator
- Alternatives to Guardianship
- Arranging for Help & Services
- Representative Payee
- Power of Attorney
- Health Care Agent & Advanced Health Care Directives
- Trusts and Savings Accounts
There are approximately 350 people in Clay County, Missouri under guardianship and conservatorship with the Public Administrator's Office.
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