Consideration and planning must be conducted for youth who will continue to need supported care after transition to adulthood. Planning documents which may assist with this process include: 

• Power of Attorney
• Durable Power of Attorney
• Durable Power of Attorney for Healthcare

Possible court actions include:

• Guardianship
• Conservatorship
• Limited guardianship
• Limited conservatorship

The Execution of a Power of Attorney, Durable Power of Attorney, and Durable Power of Attorney for Healthcare

These documents allow someone to appoint another person to make decisions for him or herself. To execute a power of attorney, durable power of attorney, or a durable power of attorney for healthcare, the youth cannot be disabled or incapacitated. 

Each of these documents allows the youth to appoint another person, called an attorney in fact, to make certain decisions on his or her behalf. The decisions which can be made by the attorney in fact must be specified in the power of attorney document.  A durable power of attorney for healthcare allows the attorney in fact to make specified healthcare decisions, which may include the decision to withhold or withdraw life prolonging procedures.  Employees of the Department of Social Services and Department of Mental Health are prohibited by law from being appointed as an attorney in fact unless the employee is closely related to the youth.  

A power of attorney which is not durable expires in the event the youth becomes disabled or incapacitated. A power of attorney which is not durable also expires at the end of one year or when specified in the document if earlier than one year.  A durable power of attorney or durable power of attorney for healthcare does not expire in the event of disability or incapacity and may be of such duration as specified in the document or after the death of the youth when probate issues are resolved.

The Missouri Bar has available “Durable Powers of Attorney” and “Guardians and Conservators under Missouri Law” resource guides and an accompanying HIPAA form which further explains this option. The decision on whether a youth wishes to execute a power of attorney of any type is an important legal decision with important consequences. If the youth is competent to make his/her own decisions and is competent to execute a power of attorney the youth should be given an opportunity to consult with his/her guardian ad litem or his/her own attorney for legal advice before the youth is asked to sign a power of attorney of any kind.  DSS/CD personnel need to be careful to avoid giving legal advice on this issue to the youth involved.

Guardianship and/or Conservatorship

A guardianship may be pursued by CD/DLS for a youth between the ages of 18 and 21 when the youth has a physical or mental condition so serious the youth cannot make decisions for the youth’s own safety and well-being. A conservatorship may be pursued when a youth between the ages of 18 and 21 is unable due to a physical or mental condition to effectively manage his or her financial resources.  A guardianship and conservatorship often are pursued together, but obtaining both a guardianship and a conservatorship for the youth may not be necessary in all cases.  A guardianship or conservatorship may be full or partial depending on the extent of the physical or mental condition of the youth. 

A guardianship, under Missouri Law Chapter 475, is when a person is appointed by the Court (typically the Probate Division of the Circuit Court) to have the physical care and custody of an adult who has been legally determined to be incapacitated. A person deemed incapacitated refers to one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent he/she lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. 

A conservator is a person or a corporation, such as a bank or trust company, appointed by the Court (typically the Probate Division of the Circuit Court) to manage the property of an adult who has been found to be disabled. A disabled person is defined as one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent the person lacks ability to manage his/her financial resources. 

In limited guardianship, the judge must specify the extent of the powers and duties of the limited guardian in order to allow the ward to care for himself to the maximum of his ability. The intent is to design the guardianship arrangement to encourage the development of maximum self-reliance and independence of the ward and should be considered before full guardianship.

Limited conservatorship is much like limited guardianship, except conservatorship deals strictly with the estate (property and financial resources) of the protectee. If a limited conservator is appointed, the judge must specify his powers and duties in such a way as to permit the person with a disability to manage his resources to the fullest extent of his ability. Furthermore, appointing a limited guardian and/or limited conservator does not impose any legal limitation on the person except for what is specified in the court order.

An adult incapacitated or disabled person may designate his or her own guardian and/or conservator if he or she is able to communicate a reasonable choice to the court. Also, any competent adult person can designate a suitable person to serve as guardian or conservator if done in writing and witnessed by at least two witnesses within five years before the hearing.  This is typically done in a durable power of attorney.  If the incapacitated or disabled adult does not have a preference, or is unable to express a reasonable preference, the court will consider appointing as guardian and/or conservative, in order:

• spouse,
• parents,
• adult children,
• adult brothers and sisters,
• other close adult relatives.

The Family Support Team should follow this list of preferences. Only when there is specific evidence a family member is unable to serve as guardian and/or conservator should the team consider alternative providers.  The team should also consider the appointment of an appropriate kinship resource if a suitable family member is not available.  If there are no relatives or kinship resources willing or able to serve, the court has the power to appoint any suitable person (such as a close friend).  The court may also appoint the Public Administrator, an elected county official whose job is to handle such matters when no one else is available.  A person does not have to be a resident of Missouri to qualify for appointment as a guardian or conservator but this may be taken into consideration by the court when determining who may be suitable.  If they are out of state, they do have to appoint a “resident agent” within the state to serve in the case the out of state guardian cannot be reached. 

Any person who knows another person may require a guardian and/or conservator can commence the process by filing an application in the Probate Division in the county where the alleged incapacitated or disabled adult resides. The person alleged to need a guardian and/or conservator is called the respondent. Both the petitioner and respondent must be represented in court by an attorney. The court will appoint an attorney for the respondent if the respondent does not have an attorney. After a hearing, the court will decide whether a guardian and/or conservator are needed and make the appointment, if necessary. Notice of the application must be served to:

• the alleged incapacitated or disabled person,
• his or her spouse,
• parents,
• children or other close relative over the age of 18 years;
• any person acting in a representative capacity with respect to any of the respondent’s financial resources;
• any person having care and custody of the respondent.

If the court has made a finding of total disability and incapacity, the person is presumed to be incompetent for all legal purposes.

Guardians must always act in the best interests of the ward. The guardian of an incapacitated person is responsible for the physical custody of the ward and must make decisions about the ward’s care, treatment, shelter, education, support and maintenance. Guardians may give legal consent for medical treatment of the ward. Guardians must report to the court at least annually on the ward’s physical condition.

A conservator is responsible for protecting and managing the protectee’s financial assets. The conservator must properly and prudently invest the protectee’s assets, apply those assets to the protectee’s care and maintenance, and account to the Probate Division for all monies received and expended on behalf of the protectee. Most expenditures on behalf of the protectee must be authorized by prior court order.

Guardians and conservators are not personally liable for the debts and obligations of a ward or protectee, so long as they make it clear they are acting on behalf of the ward or protectee in a representative capacity. However, any unauthorized use or misappropriation of the ward/protectee’s property by either the guardian or the conservator will render them liable and result in their removal.

Guardianship and conservatorship for an incapacitated and disabled person may terminate when the ward/protectee is found to be competent by the court. It may also be terminated if the court determines the guardian or conservator is not following the duties and responsibilities required by law. Anyone, including the incapacitated or disabled person or someone on their behalf may, at any time, petition the court for a change in who is guardian/conservator, or to increase or decrease the powers outlined in the letters of guardianship or conservatorship. The court may also accept resignations of the guardian or conservator. The court may issue an order terminating guardianship or conservatorship or the order appointing a guardian or conservator may expire unless the court orders an extension of the appointment. Conservatorship may terminate if the assets of the protectee are completely exhausted. Authority is also terminated upon the death of the ward/protectee.

Coordination should occur with the Department of Mental Health and the Division of Developmental Disabilities if the youth is currently receiving services or involvement is necessary. Some youth receiving these services while in care may not need continued care or a guardianship arrangement.  

Related Practice Alerts and Memos:

2-10-20 – CD20-11 – Independent Living Arrangements

5-28-20 – CD20-17 – Housing Services and Coordinated Entry System