Missouri’s Senate Bill 806 goes into effect on August 28, 2018. The changes represent a major overhaul of Missouri’s guardianship and conservatorship statutes, skewing them in favor of greater involvement and participation by adult disabled individuals. While these changes present a greater opportunity for independence for those living with intellectual disabilities, it poses some problems for the majority of those living under guardianships and conservatorships who are unable to participate in a meaningful way in most of life’s activities. Here are some of the most important points to consider:
Expect an increase in litigation. The changes broaden the definition of an “interested person.” Prior to SB 806, only those individuals who could demonstrate a financial interest in the ward/protectee’s estate were deemed interested persons with standing to contest the proceedings at any stage. Now, the definition has been substantially broadened to include all family members. While SB 806 now codifies who has priority to petition to be appointed (and the order of priority in the statute will control) it allows any family member, and any person or entity with financial interest, to challenge the guardianship at any time. Example: a parent applies for guardianship of an adult child. Two years later, after the guardian is appointed, a sibling of the child contests the guardianship. Prior to SB 806, this sibling didn’t have standing to contest a current guardianship. Post SB 806, they do.
Priority of petitioners and new requirements for background checks. Petitioners will be considered by priority: those nominated by the proposed ward; then anyone nominated in a properly executed document (like a will or power of attorney); spouse; parents; adult children; and siblings. The foregoing people do not have to submit to a background check or credit check. However, other petitioners, like grandparents, step-parents and step-children, aunts, uncles, cousins, nieces, nephews, and unrelated individuals are required to submit to background checks that include Department of Mental Health, Department of Social Services, Abuse, Sex Offender, and Criminal registries – some of which are not publicly available, have to be certified and accompanied by a records affidavit, and obtained at the cost of the Petitioner. Jackson County has agreed to waive this requirement if the petitioner files an affidavit claiming that obtaining these reports poses an undue burden and for good cause shown.
In reSJMhas been partially overruled.In re SJMwas a case that caused numerous probate attorneys a lot of consternation. It required that underlying orders for custody be modified before the probate court could enter guardianship orders for adult disabled children so that probate orders would not conflict with family court orders. Now, as to adult guardianships only, the statutes will be revised to place primary jurisdiction with the probate court to adjudicate incapacity and enter guardianship orders, even if those orders conflict with underlying custody orders. The guardianship will then control, and visitation will be addressed by the probate court…although the probate judges aren’t entirely sure how visitation will be enforced.
All orders in guardianships have to state whether the ward retains the ability to vote, drive, and marry. Typically, the only difference between a limited guardianship and a total guardianship was that the ward retained the right to vote and drive in a limited guardianship. Now, the ward can retain the right to vote, drive, and marry in a total guardianship upon a showing that the ward has a basic understanding of these rights. All orders have to state whether these rights are being retained by the ward.
Rebuttable presumption that terminated parental rights mean biological parents are not suitable to be appointed. If the Children’s Division has previously been involved and later petitions for guardianship of a child in its care, petitioning to appoint a foster parent or Public Administrator as guardian of a child, there is a rebuttable presumption that a biological parent previously adjudicated as unfit is unsuitable to be appointed as guardian and conservator of that child, even if the relationship was later rehabilitated.
New asset reporting and notice requirements. Now, on all petitions for guardianship and conservatorship, if the ward holds property jointly with another person or entity, if the ward is a co-tenant with another person or entity, or if the ward’s assets have transfer on death, pay on death, or any beneficiary designation, those individuals and entities are entitled to notice and have to be identified to the court in inventory documents.
Guardianship and Conservatorship Plans are now required. With each annual report and accounting, the guardian has to provide a detailed plan of care for the coming year. Conservators have to provide a plan for the protectee’s assets with their annual accountings.
Sale of Personal and Real Property now requires a hearing. Sale of real and tangible personal property in excess of $5,000 requires notice to the ward and a hearing. The petitioner can seek a waiver of the notice and hearing requirement, but only if the ward has previously been deemed so incapacitated that the judgment of incapacity states that the ward is unable to participate meaningfully in any proceeding and there is no indication from status reports that the level of capacity of the ward has improved.
These are just a handful of the major changes petitioners, disabled individuals, and their families can expect from the new laws. For existing guardianships and conservatorships, the law states that they should be brought into compliance by April 28, 2019. However, retroactivity cannot be enforced because there is no penalty for failing to comply with the new law on existing cases.