A little over a year ago, one Missouri Appellate Court was asked to decide whether it was proper to grant a guardianship over an adult disabled child to the mother, when both mother and father had previously shared joint custody pursuant to an order in a divorce proceeding. The probate court granted the mother guardianship to the exclusion of the father and over the father’s objections. Father appealed, and In re SJM became precedent that is now followed by probate judges and commissioners in Missouri. There, the Missouri Court of Appeals for the Eastern District determined that while the probate court did have subject matter jurisdiction as far as the guardianship of an adult disabled child was concerned, it did not have authority to enter a judgment that was inconsistent or conflicting with the previous divorce decree and child custody order. This is because disabled children are not emancipated when they turn 18; under statute, their parents are still obligated for their care and child support. This is also true of children over the age of 18 who attend secondary education.

So how does a parent obtain a guardianship when there is an existing custody order still in effect? It has been suggested that the probate attorney must intervene in the underlying divorce action, regardless of how old the action is, and request modification of the custody and support order so that it will not be inconsistent with guardianship proceedings. One might ask whether the solution would be to appoint co-guardians and co-conservators, by having both parents, rather than just one parent, serve in a fiduciary capacity over the child. Most courts in Missouri reject this approach and insist upon limiting the role of guardian and conservator to one person. Generally, this policy is efficient for the court and reduces the court’s need to supervise two fiduciaries who may not always agree on a course of action or who may not always be available at the same time to act swiftly and unanimously on a disabled person’s behalf in the event of a medical emergency.

The problem, however, is that the preference with one guardian often conflicts with the Missouri policy of ensuring joint custody of the parents absent exceptional circumstances. While Missouri’s family law policies favor a standard of “best interest” of the child, the “best interest” standard is not utilized in choosing a guardian in probate proceedings. Perhaps the only way to harmonize the aftermath of the holding in In re SJM is to argue for a best interest standard in guardianships when there is an underlying custody order that may conflict with a one-person guardian standard. Alternatively, perhaps custody orders for children who are disabled need to anticipate the need for adult guardianship in the future and put in language that would allow for termination of joint custody in favor of guardianship upon the child turning eighteen.

Ultimately, this is a legislative issue. Legislation was proposed this year in the Missouri legislature that would have remedied these issues, but the bill has sat stagnant. Without a fix for these issues, it is unclear if healthcare providers, educational programs, therapy services, and government benefit programs will recognize an old custody order in lieu of guardianship papers on behalf of an adult disabled child. At the end of the day, without a legislative solution, these children could fall through the cracks, and their families incur hefty legal fees they may be unable to pay in order to obtain court authority to get the care necessary for disabled children.