Guardian/Conservator Appointment Process
There are four types of mental disability and incapacitation that may cause the probate court to appoint a guardian and/or conservator:
1. Mental illness (such as schizophrenia and bi-polar illness)
2. Intellectual disabilities/developmental disabilities
3. Brain injury or disease
4. Disease of the aging (such as Alzheimer's and other forms of dementia)
The above disabilities are not by themselves sufficient reasons to declare someone incompetent. Competency has to do with a person's ability to make an informed decision without the risk of harm that may be experienced as a result of inability to provide for him/herself or manage his/her affairs.
Further, a conservator may be appointed when only a physical disability impairs a person's ability to handle his/her financial affairs.
Some incapacitated persons are able to make responsible decisions in some, but not all, areas of their lives. In these situations, guardianship and/or conservatorship may be limited by the court to only those areas in which the incapacitated person is unable to make responsible decisions.
Guardianship/conservatorship is the most restrictive form of protection given to mentally disable and incapacitated individuals and should be used only when less restrictive measures are not adequate to meet their needs.
Step One in the appointment process is to petition the Probate Court. Any interested person (called a petitioner) may file for the appointment as guardian and/or conservator naming himself/herself or some other qualified person. The petition should be filed in the probate division of the circuit court in the county where the incapacitated person resides. While an attorney may not be needed for a person to file a petition, one will be necessary to present the petitioner's case at the court hearing.
Notice is required to be served upon the alleged incapacitated person and he/she may retain the services of a private attorney or the court will appoint one to represent him. The attorney must visit the client prior to the scheduled hearing to exchange information that would safeguard and advance the interest of the client.
At the court hearing, the person filing the petition must present evidence to demonstrate why the individual needs a guardian and/or a conservator and to what degree that person is incapacitated or disabled. Medical evidence is required! Physicians can usually present a written medical report without having to appear in person.
The court costs of the proceeding are established by law. If a person is declared incapacitated, his estate will pay the costs. If the estate does not contain sufficient funds, the county is required to pay. If the person is not found to be incapacitated, the petitioner must pay the costs.
Before appointed a guardian, the court is required to consider the suitability of persons willing to serve in the following order:
1. The incapacitated person's verbal choice
2. Any eligible person named in writing when the incapacitated person was capable of making and communicating a choice (must have been written within five years prior to the hearing)
3. An adult relative of the incapacitated person
4. Other interested persons such as friends or the public administrator
It is important to remember that guardianship/conservatorship is a relationship in which one person places trust and confidence in the capability, integrity and fidelity of another. The guardina/conservator holds the ward/protectee's rights in trust. This means that, when under a full guardian/conservatorship, the ward/protectee cannot drive, marry, decide where to live, decide his/her medical care, vote or enter into legal contract.
Although, the guardian/conservator has an ethical obligation to allow the ward/protectee, whenever possible, to have a voice in the decision-making process.
Responsibilities of Public Administrator
Hours: 8 a.m - 4:30 p.m.
Monday-Friday (except holidays)
101 S. Wood St.
Neosho, MO 64850