If you are caring for a senior in Missouri and you notice a change in behavior or ability to complete daily tasks, it may be time to consider establishing a Missouri guardianship. Some common signs that your loved one may need formal assistance include trouble remembering to take medication or pay bills and disorientation. Planning for the possibility that you will need a guardianship is always preferable to frantically searching for a solution after your loved one has become legally incapacitated.
What is a guardian?
A guardian is an individual appointed by the court to manage someone else’s affairs when that person has been deemed incapacitated by the court. The type of guardianship you need will depend on the extent of incapacity and the nature of the affairs that need to be managed. In many cases, guardianships are created for the purpose of managing personal care, medical decisions, and/or finances.
What to do if your loved one needs a guardian
Sometimes all it takes is the support of family members who are willing to pitch in and care for a relative who is incapacitated. In those situations, a formal, court-appointed guardianship may not be necessary. However, that is not always sufficient. A common misconception is that family members can automatically gain access or control over another family member’s financial accounts if that person is in need of assistance. Instead, a guardian needs to be appointed and given the legal authority to handle those matters.
The first step in creating a Missouri guardianship
The first step in creating a Missouri guardianship is filing a petition for guardianship with the court. The Court must first make a determination of whether the person for whom the guardianship is sought is indeed legally incapacitated. This determination can be challenged by any interested party, including the person for whom the guardianship is sought.
The authority of the appointed guardian
Once the court has determined that your loved one is legally incapacitated, the guardian can be selected and officially appointed by the court. It is important to recognize that a guardian’s authority of the ward is not without limits. In fact, many significant decisions like major medical treatment must be made with prior court approval. The appointed guardian remains under the court’s supervision throughout the duration of the guardianship.
A formal guardianship is not always the best option
While formal guardianship may be necessary for some people, there are less expensive and less intrusive ways to care for someone who is incapacitated. It is important to remember that a guardianship means an extensive loss of individual rights. For this reason, most people do not resort to guardianship unless there is no other viable option.
Potential disadvantages of a Missouri guardianship
Cost is one big disadvantage of guardianship. Because of the long-term court supervision, the expense of guardianship can be substantial. Another disadvantage is the fact that guardianship proceedings are open to the public resulting in a complete lack of privacy. In other words, the personal details of the ward’s incapacity and the specifics of their finances will become public record. For some, this is a great source of embarrassment. One of the biggest disadvantages, however, is the complete lack of autonomy that guardianship can cause. The ward will no longer be capable of making their own decisions regarding very important life events and this can be humiliating. The good news is there are less restrictive alternatives available which should be discussed with a Missouri estate planning attorney.
Alternatives to guardianship you should consider
A durable power of attorney is a common example of a less restrictive way to obtain legal authority over someone else’s affairs. A durable power of attorney provides the same control as a guardianship, but it is less formal and less expensive. A power of attorney is a legal document that sets out the specific authority of the agent to make decisions and take actions on the other person’s behalf. It can easily be drafted by an estate planning attorney and it does not require court supervision or approval.
When do I need to speak to an attorney?
If you believe your loved one needs more substantial assistance than you can currently provide, you should consult with an estate planning attorney to decide the best course of action. If a durable power of attorney is all that you need, that document should be executed far in advance of the more serious signs of diminished capacity. Otherwise, your loved one may not have the mental capacity to execute the power of attorney. If that happens, guardianship may be your only option.
If you have questions regarding guardianships, or any other elder law matters, contact Gaughan & Connealy for a consultation either online or by calling us at (816) 974-3030.