Modifies provisions regarding forensic guardianships

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1317
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR CARTER.
3372S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 456.1 -103, 475.010, 475.050, 475.055, 475.060, 475.075, 475.079, and
475.120, RSMo, and to enact in lieu thereof eight new sections relating to
guardianships.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 456.1-103, 475.010, 475.050, 475.055, 1
475.060, 475.075, 475.079, and 475.120, RSMo, are repealed and 2
eight new sections enacted in lieu thereof, to be known as 3
sections 456.1 -103, 475.010, 475.050, 475.055, 475.060, 4
475.075, 475.079, and 475.120, to read as follows:5
456.1-103. In sections 456.1-101 to 456.11-1106, the 1
following terms shall mean: 2
(1) "Action", with respect to an act of a trustee, 3
includes a failure to act; 4
(2) "Ascertainable standard", a standard relating to 5
an individual's health, education, support, or maintenance 6
within the meaning of Section 2041(b)(1)(A) or Section 7
2541(c)(1) of the Internal Revenue Code; 8
(3) "Beneficiary", a person that: 9
(a) Has a present or future beneficial interest in a 10
trust, vested or contingent; or 11
(b) In a capacity other than that of trustee, holds a 12
power of appointment over trust property; 13
(4) "Charitable trust", a trust, or portion of a 14
trust, created for a charitable purpose described in 15
subsection 1 of section 456.4-405; 16
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(5) "Conservator", a person described in subdivision 17
(3) of section 475.010. This term does not include a 18
conservator ad litem; 19
(6) "Conservator ad litem", a person appointed by the 20
court pursuant to the provisions of section 475.097; 21
(7) "Directed trust", any trust, including a split 22
interest trust, in which the trust instrument: 23
(a) Authorizes a trust protector to instruct or direct 24
the trustee; 25
(b) Charges a trust protector with any 26
responsibilities regarding the trust; 27
(c) Grants the trust protector one or more powers over 28
the trust; or 29
(d) Directs one or more powers over the trust to a 30
person, who is not serving as a trustee, and is not a 31
settlor or a beneficiary; 32
(8) "Environmental law", a federal, state, or local 33
law, rule, regulation, or ordinance relating to protection 34
of the environment; 35
(9) "Financial institution", a non-foreign bank, 36
savings and loan or trust company chartered, regulated and 37
supervised by the Missouri division of finance, the office 38
of the comptroller of the currency, the office of thrift 39
supervision, the National Credit Union Administration, or 40
the Missouri division of credit union supervision. The term 41
"non-foreign bank" shall mean a bank that is not a foreign 42
bank within the meaning of subdivision (1) of section 43
361.005; 44
(10) "Guardian", a person described in subdivision 45
[(8)] (9) of section 475.010. The term does not include a 46
guardian ad litem; 47
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(11) "Interested persons", include beneficiaries and 48
any others having a property right in or claim against a 49
trust estate which may be affected by a judicial 50
proceeding. It also includes fiduciaries and other persons 51
representing interested persons. The meaning as it relates 52
to particular persons may vary from time to time and must be 53
determined according to the particular purposes of, and 54
matter involved in, any proceeding; 55
(12) "Interests of the beneficiaries", the beneficial 56
interests provided in the terms of the trust; 57
(13) "Internal Revenue Code", the United States 58
Internal Revenue Code of 1986, as in effect on January 1, 59
2005, or as later amended; 60
(14) "Jurisdiction", with respect to a geographic 61
area, includes a state or country; 62
(15) "Person", an individual, corporation, business 63
trust, estate, trust, partnership, limited liability 64
company, association, joint venture, government; 65
governmental subdivision, agency, or instrumentality; public 66
corporation, or any other legal or commercial entity; 67
(16) "Permissible distributee", a beneficiary who is 68
currently eligible to receive distributions of trust income 69
or principal, whether mandatory or discretionary; 70
(17) "Power of withdrawal", a presently exercisable 71
power of a beneficiary to withdraw assets from the trust 72
without the consent of the trustee or any other person; 73
(18) "Principal place of administration", of a trust 74
is the trustee's usual place of business where the records 75
pertaining to the trust are kept, or the trustee's residence 76
if the trustee has no such place of business, unless 77
otherwise designated by the terms of the trust as provided 78
in section 456.1-108. In the case of cotrustees, the 79
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principal place of administration is, in the following order 80
of priority: 81
(a) The usual place of business of the corporate 82
trustee if there is but one corporate cotrustee; 83
(b) The usual place of business or residence of the 84
trustee who is a professional fiduciary if there is but one 85
such trustee and no corporate cotrustee; or 86
(c) The usual place of business or residence of any of 87
the cotrustees; 88
(19) "Professional fiduciary", an individual who 89
represents himself or herself to the public as having 90
specialized training, experience or skills in the 91
administration of trusts; 92
(20) "Property", anything that may be the subject of 93
ownership, whether real or personal, legal or equitable, or 94
any interest therein; 95
(21) "Qualified beneficiary", a beneficiary who, on 96
the date the beneficiary's qualification is determined: 97
(a) Is a permissible distributee; 98
(b) Would be a permissible distributee if the 99
interests of the permissible distributees described in 100
paragraph (a) of this subdivision terminated on that date; or 101
(c) Would be a permissible distributee if the trust 102
terminated on that date; 103
(22) "Record", information that is inscribed on a 104
tangible medium or that is stored in an electronic or other 105
medium and is retrievable in perceivable form; 106
(23) "Revocable", as applied to a trust, means that 107
the settlor has the legal power to revoke the trust without 108
the consent of the trustee or a person holding an adverse 109
interest, regardless of whether the settlor has the mental 110
capacity to do so in fact; 111
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(24) "Settlor", a person, including a testator, who 112
creates, or contributes property to, a trust. If more than 113
one person creates or contributes property to a trust, each 114
person is a settlor of the portion of the trust property 115
attributable to that person's contribution except to the 116
extent another person has the power to revoke or withdraw 117
that portion pursuant to the terms of the trust; 118
(25) "Sign", with present intent to authenticate or 119
adopt a record: 120
(a) To execute or adopt a tangible symbol; or 121
(b) To attach to or logically associate with the 122
record an electronic sound, symbol, or process; 123
(26) "Spendthrift provision", a term of a trust which 124
restrains either the voluntary or involuntary transfer or 125
both the voluntary and involuntary transfer of a 126
beneficiary's interest; 127
(27) "State", a state of the United States, the 128
District of Columbia, Puerto Rico, the United States Virgin 129
Islands, or any territory or insular possession subject to 130
the jurisdiction of the United States. The term includes an 131
Indian tribe or band recognized by federal law or formally 132
acknowledged by a state; 133
(28) "Terms of a trust", the manifestation of the 134
settlor's intent regarding a trust's provisions as expressed 135
in the trust instrument or as may be established by other 136
evidence that would be admissible in a judicial proceeding; 137
(29) "Trust instrument", an instrument executed by the 138
settlor that contains terms of the trust, including any 139
amendments thereto; 140
(30) "Trust protector", any person, group of persons, 141
or entity not serving as a trustee and not the settlor or a 142
beneficiary, designated in a trust instrument to instruct or 143
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direct the trustee or charged in the trust instrument with 144
any responsibilities regarding the trust or expressly 145
granted in the trust instrument one or more powers over the 146
trust. The term trust protector includes, but is not 147
limited to, persons or entities identified in the trust 148
instrument as trust advisors, trust directors, distribution 149
advisors, or investment advisors; 150
(31) "Trustee", includes an original, additional, and 151
successor trustee, and a cotrustee. 152
475.010. When used in this chapter, unless otherwise 1
apparent from the context, the following terms mean: 2
(1) "Adult", a person who has reached the age of 3
eighteen years; 4
(2) "Claims", liabilities of the protectee arising in 5
contract, in tort or otherwise, before or after the 6
appointment of a conservator, and liabilities of the estate 7
which arise at or after the adjudication of disability or 8
after the appointment of a conservator of the estate, 9
including expenses of the adjudication and of 10
administration. The term does not include demands or 11
disputes regarding title of the protectee to specific assets 12
alleged to be included in the estate; 13
(3) "Conservator", one appointed by a court to have 14
the care and custody of the estate of a minor or a disabled 15
person. A "limited conservator" is one whose duties or 16
powers are limited. The term "conservator", as used in this 17
chapter, includes limited conservator unless otherwise 18
specified or apparent from the context; 19
(4) "Conservator ad litem", one appointed by the court 20
in which particular litigation is pending regarding the 21
management of financial resources on behalf of a minor, a 22
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disabled person, or an unborn person in that particular 23
proceeding or as otherwise specified in this chapter; 24
(5) "Custodial parent", the parent of a minor who has 25
been awarded sole or joint physical custody of such minor, 26
or the parent of an incapacitated person who has been 27
appointed as guardian of such person, by an order or 28
judgment of a court of this state or of another state or 29
territory of the United States, or if there is no such order 30
or judgment, the parent with whom the minor or incapacitated 31
person primarily resides; 32
(6) "Disabled" or "disabled person", one who is: 33
(a) Unable by reason of any physical, mental, or 34
cognitive condition to receive and evaluate information or 35
to communicate decisions to such an extent that the person 36
lacks ability to manage the person's financial resources; or 37
(b) The term disabled or disabled person, as used in 38
this chapter includes the terms partially disabled or 39
partially disabled person unless otherwise specified or 40
apparent from the context; 41
(7) "Eligible person" or "qualified person", a natural 42
person, social service agency, corporation or national or 43
state banking organization qualified to act as guardian of 44
the person or conservator of the estate pursuant to the 45
provisions of section 475.055; 46
(8) "Forensic guardianship", a guardianship in which 47
the division of probation and parole within the department 48
of corrections is appointed as a guardian pursuant to the 49
provisions of section 475.055; 50
(9) "Guardian", one appointed by a court to have the 51
care and custody of the person of a minor or of an 52
incapacitated person. A "limited guardian" is one whose 53
duties or powers are limited. A "standby guardian" is one 54
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approved by the court to temporarily assume the duties of 55
guardian of a minor or of an incapacitated person under 56
section 475.046. The term guardian, as used in this 57
chapter, includes limited guardian and standby guardian 58
unless otherwise specified or apparent from the context; 59
[(9)] (10) "Guardian ad litem", one appointed by a 60
court, in which particular litigation is pending on behalf 61
of a minor, an incapacitated person, a disabled person, or 62
an unborn person in that particular proceeding or as 63
otherwise specified in this code; 64
[(10)] (11) "Habilitation", a process of treatment, 65
training, care, or specialized attention that seeks to 66
enhance and maximize the ability of a person with an 67
intellectual disability or a developmental disability to 68
cope with the environment and to live as determined by the 69
person as much as possible, as is appropriate for the person 70
considering his or her physical and mental condition and 71
financial means ; 72
[(11)] (12) "Incapacitated person", one who is unable 73
by reason of any physical, mental, or cognitive condition to 74
receive and evaluate information or to communicate decisions 75
to such an extent that the person, even with appropriate 76
services and assistive technology, lacks capacity to manage 77
the person's essential requirements for food, clothing, 78
shelter, safety or other care such that serious physical 79
injury, illness, or disease is likely to occur. The term 80
incapacitated person as used in this chapter includes the 81
term partially incapacitated person unless otherwise 82
specified or apparent from the context; 83
[(12)] (13) "Interested persons", spouses, children, 84
parents, adult members of a ward's or protectee's family, 85
creditors or any others having a property right or claim 86
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against the estate of a protectee being administered, 87
trustees of a trust of which the ward or protectee is a 88
beneficiary, agents of a durable power of attorney for a 89
ward or protectee, and children of a protectee who may have 90
a property right or claim against or an interest in the 91
estate of a protectee. This meaning may vary at different 92
stages and different parts of a proceeding and shall be 93
determined according to the particular purpose and matter 94
involved; 95
[(13)] (14) "Least restrictive alternative", with 96
respect to the guardianship order and the exercise of power 97
by the guardian , a course of action or an alternative that 98
allows the incapacitated person to live, learn, and work 99
with minimum restrictions on the person, as are appropriate 100
for the person considering his or her physical and mental 101
condition and financial means. Least restrictive 102
alternative also means choosing the decision or approach 103
that: 104
(a) Places the least possible restriction on the 105
person's personal liberty and exercise of rights and that 106
promotes the greatest possible inclusion of the person into 107
his or her community, as is appropriate for the person 108
considering his or her physical and mental condition and 109
financial means; and 110
(b) Is consistent with meeting the person's essential 111
requirements for health, safety, habilitation, treatment, 112
and recovery and protecting the person from abuse, neglect, 113
and financial exploitation; 114
[(14)] (15) "Manage financial resources", either those 115
actions necessary to obtain, administer, and dispose of real 116
and personal property, intangible property, business 117
property, benefits, income or any assets, or those actions 118
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necessary to prevent waste, loss or dissipation of property, 119
or those actions necessary to provide for the care and 120
support of such person or anyone legally dependent upon such 121
person by a person of ordinary skills and intelligence 122
commensurate with his or her training and education; 123
[(15)] (16) "Minor", any person who is under the age 124
of eighteen years; 125
[(16)] (17) "Parent", the biological or adoptive 126
mother or father of a child whose parental rights have not 127
been terminated under chapter 211, including: 128
(a) A person registered as the father of the child by 129
reason of an unrevoked notice of intent to claim paternity 130
under section 192.016; 131
(b) A person who has acknowledged paternity of the 132
child and has not rescinded that acknowledgment under 133
section 193.215; and 134
(c) A person presumed to be the natural father of the 135
child under section 210.822; 136
[(17)] (18) "Partially disabled person", one who is 137
unable by reason of any physical, mental, or cognitive 138
condition to receive and evaluate information or to 139
communicate decisions to such an extent that such person 140
lacks capacity to manage, in part, his or her financial 141
resources; 142
[(18)] (19) "Partially incapacitated person", one who 143
is unable by reason of any physical, mental, or cognitive 144
condition to receive and evaluate information or to 145
communicate decisions to the extent that such person lacks 146
capacity to meet, in part, essential requirements for food, 147
clothing, shelter, safety, or other care without court- 148
ordered assistance; 149
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[(19)] (20) "Protectee", a person for whose estate a 150
conservator or limited conservator has been appointed or 151
with respect to whose estate a transaction has been 152
authorized by the court under section 475.092 without 153
appointment of a conservator or limited conservator; 154
[(20)] (21) "Seriously ill", a significant likelihood 155
that a person will become incapacitated or die within twelve 156
months; 157
[(21)] (22) "Social service agency", a charitable 158
organization organized and incorporated as a not-for-profit 159
corporation under the laws of this state and which qualifies 160
as an exempt organization within the meaning of Section 161
501(c)(3), or any successor provision thereto of the federal 162
Internal Revenue Code; 163
[(22)] (23) "Standby guardian", one who is authorized 164
to have the temporary care and custody of the person of a 165
minor or of an incapacitated person under the provisions of 166
section 475.046; 167
[(23)] (24) "Treatment", the prevention, amelioration 168
or cure of a person's physical and mental illnesses or 169
incapacities; 170
[(24)] (25) "Ward", a minor or an incapacitated person 171
for whom a guardian, limited guardian, or standby guardian 172
has been appointed. 173
475.050. 1. Before appointing any other eligible 1
person as guardian of an incapacitated person, or 2
conservator of a disabled person, the court shall consider 3
the suitability of appointing any of the following persons, 4
listed in the order of priority, who appear to be willing to 5
serve: 6
(1) If the incapacitated or disabled person is, at the 7
time of the hearing, able to make and communicate a 8
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reasonable choice, any eligible person nominated by the 9
person; 10
(2) Any eligible person nominated in a durable power 11
of attorney executed by the incapacitated or disabled 12
person, or in an instrument in writing signed by the 13
incapacitated or disabled person and by two witnesses who 14
signed at the incapacitated or disabled person's request, 15
before the inception of the person's incapacity or 16
disability; 17
(3) The spouse, parents, adult children, adult 18
brothers and sisters and other close adult relatives of the 19
incapacitated or disabled person; 20
(4) Any other eligible person or, with respect to the 21
estate only, any eligible organization or corporation, 22
nominated in a duly probated will of such a spouse or 23
relative. 24
2. The court shall not appoint an unrelated third 25
party as a guardian or conservator unless there is no 26
relative suitable and willing to serve or if the appointment 27
of a relative or nominee is otherwise contrary to the best 28
interests of the incapacitated or disabled person. If the 29
incapacitated or disabled person is a minor under the care 30
of the children's division and is entering adult 31
guardianship or conservatorship, it shall be a rebuttable 32
presumption that he or she has no relative suitable and 33
willing to serve as guardian or conservator. 34
3. Except for good cause shown, the court shall make 35
its appointment in accordance with the incapacitated or 36
disabled person's most recent valid nomination of an 37
eligible person qualified to serve as guardian of the person 38
or conservator of the estate. 39
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4. Except for those individuals specified in 40
subdivisions (1) [and (2)] to (3) of this subsection, the 41
court shall require all guardians and conservators who are 42
seeking appointment and who have a fiduciary responsibility 43
to a ward, an incapacitated person, or a disabled person to 44
submit at their own expense to a background screening that 45
shall include the disqualification lists of the departments 46
of mental health, social services, and health and senior 47
services; the abuse and neglect registries for adults and 48
children; a Missouri criminal record review; and the sexual 49
offender registry. Individuals seeking appointment as a 50
conservator shall also submit, at their own expense, to a 51
credit history investigation. The nominated guardian or 52
conservator shall file the results of the reports with the 53
court at least ten days prior to the appointment hearing 54
date unless waived or modified by the court for good cause 55
shown by an affidavit filed simultaneously with the petition 56
for appointment or in the event the protected person 57
requests an expedited hearing. The provisions of this 58
subsection shall not apply to: 59
(1) Public administrators; [or] 60
(2) Employees of the division of probation and parole 61
who serve as guardians on behalf of the division of 62
probation and parole in a forensic guardianship under 63
section 475.079; or 64
(3) The ward's, incapacitated person's, or disabled 65
person's spouse, parents, children who have reached eighteen 66
years of age, or siblings who have reached eighteen years of 67
age. 68
5. Guardians certified by a national accrediting 69
organization may file proof of certification in lieu of the 70
requirements of subsections 4 and 6 of this section. 71
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6. An order appointing a guardian or conservator shall 72
not be signed by the judge until such reports have been 73
filed with the court and reviewed by the judge, who shall 74
consider the reports in determining whether to appoint a 75
guardian or conservator. Such reports, or lack thereof, 76
shall be certified either by an affidavit or by obtaining a 77
certified copy of the reports. No reports or national 78
criminal history record check shall be required by the court 79
upon the application of a petitioner for an emergency 80
temporary guardianship or emergency temporary 81
conservatorship. The court may waive the requirements of 82
this subsection for good cause shown. If appointed, a 83
guardian or conservator may petition the court for 84
reimbursement of the reasonable expenses of the credit 85
history investigation and background screenings. 86
475.055. 1. Except as herein otherwise provided: 1
(1) Any adult person may be appointed guardian of the 2
person or conservator of the estate, or both, of a minor or 3
incapacitated or disabled person, except that a parent shall 4
not be denied appointment as guardian of the person of a 5
minor for the reason that the parent is a minor; 6
(2) Any charitable organization organized and 7
incorporated as a not-for-profit corporation under the laws 8
of this state prior to January 1, 1902, shall be qualified 9
to continue to serve as guardian of the person of any ward 10
for whom such charitable organization has been appointed 11
guardian of the person prior to September 28, 1983, or to be 12
appointed guardian of the person or persons adjudicated 13
incapacitated subsequent to September 28, 1983; 14
(3) Any social service agency located within a county 15
of the first classification or within a city not within a 16
county except any county of the first classification without 17
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a charter form of government with a population of one 18
hundred thousand or more inhabitants which contains all or 19
part of a city with a population of three hundred fifty 20
thousand or more inhabitants, which is found capable by the 21
court of providing an active and suitable program of 22
guardianship for the incapacitated person, taking into 23
consideration the nature of such person's disability and the 24
nature of such organization's services, may be appointed as 25
guardian of the person; however, no social service agency 26
shall be appointed as guardian of the person under this 27
subdivision unless it employs a licensed professional found 28
by the court to have sufficient expertise to meet the needs 29
of the ward, and it is found by the court that such 30
professional shall have primary responsibility for providing 31
guardianship services to the incapacitated person for which 32
such social service agency is appointed guardian. The court 33
shall not appoint as guardian of the person under this 34
subdivision a social service agency which is providing 35
residential services to the ward; 36
(4) Any corporation authorized to do business in this 37
state and empowered by its charter so to act or any national 38
banking association authorized so to act in this state may 39
be appointed conservator of the estate of a minor or 40
disabled person. No corporation other than a social service 41
agency may be appointed to serve as guardian of the 42
incapacitated person; 43
(5) (a) The division of probation and parole within 44
the department of corrections may be appointed as a guardian 45
to an incapacitated person who is found by a court of 46
competent jurisdiction to: 47
a. Have a substantial criminal history of serious 48
offenses; 49
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b. Be under supervised or unsupervised probation or 50
parole; 51
c. Be under a court order requiring or prohibiting a 52
specified act; 53
d. Be required to register as a sex offender pursuant 54
to sections 589.400 to 589.425; 55
e. Have a likelihood of serious harm, as such term is 56
defined in section 632.005, to himself, herself, or others 57
or is likely to commit an offense or violate any term or 58
condition of the incapacitated person's probation or parole 59
or any other court order that the incapacitated person is 60
under; 61
f. Have a substance use disorder, as such term is 62
defined in section 478.001, and where such substance use 63
disorder results in the total or partial incapacity at issue 64
or significant incapacitation from alcohol or drugs; or 65
g. Have significant interaction with law enforcement 66
officers, as such term is defined in section 556.061. 67
(b) The division of probation and parole appointed as 68
a guardian under this subdivision shall have the same rights 69
and duties as a public administrator appointed as a guardian. 70
(c) The incapacitated person shall not be committed or 71
incarcerated in any government or privately operated 72
institution, facility, jail, prison, program, housing, or 73
mental health or psychiatric unit solely on the basis of 74
being in a forensic guardianship, and the incapacitated 75
person shall not be denied participation in and the benefits 76
from any government or privately operated institution, 77
facility, program, housing, or unit solely on the basis of 78
being in a forensic guardianship unless otherwise prohibited 79
by a clearly established state or federal law, rule, or 80
regulation or any term or condition of probation, parole, 81
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court order, or rule of any jail or prison work release 82
program. 83
2. No person or corporation, other than the public 84
administrator of the county and the division of probation 85
and parole, shall be appointed guardian or conservator 86
unless the appointee has filed a consent to act. Except as 87
otherwise provided by this section, no person or corporation 88
licensed as a facility by the Missouri department of mental 89
health or the Missouri department of social services, nor 90
any administrator, owner, operator, manager or employee of 91
such a facility shall be appointed guardian of the person or 92
conservator of the estate of any resident of that facility, 93
unless related within the fourth degree of consanguinity or 94
affinity to the resident. No full-time judge of any court 95
of this state and no clerk, deputy clerk or division clerk 96
shall be appointed as guardian of the person or conservator 97
of the estate, but a judge, clerk, deputy clerk or division 98
clerk may serve as a guardian or conservator for a ward or 99
protectee who is a spouse or is within the third degree of 100
relationship by consanguinity or affinity as calculated 101
according to civil law. No natural person under eighteen 102
years of age, other than as provided in subsection 1 of this 103
section, no incapacitated or disabled person, and no 104
habitual drunkard shall be appointed guardian of the person 105
or conservator of the estate. No person whose letters of 106
guardianship or conservatorship are revoked shall be 107
appointed guardian or conservator within two years after the 108
revocation. No one shall be appointed guardian of the 109
person or conservator of the estate unless qualified to 110
perform the duties of said office or offices. 111
3. A person becomes a guardian or conservator of a 112
minor or incapacitated or disabled person upon issuance of 113
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letters of guardianship or conservatorship by the court. A 114
person so appointed need not reside within this state in 115
order to accept or serve as guardian or conservator, unless 116
the court finds that such person, taking into consideration 117
his place of residence, is unable to effectively perform the 118
duties of guardian or conservator as provided by this code. 119
The guardianship or conservatorship status continues until 120
terminated, without regard to the location from time to 121
time, whether within or outside of this state, of the 122
guardian and ward or conservator and protectee. 123
4. Subsections 3 and 4 of section 473.117, section 124
473.689, and section 475.338 are applicable to nonresident 125
guardians and conservators. 126
5. If a social service agency is appointed to act as 127
guardian under this section, any other eligible person 128
listed in subdivision (3) of subsection 1 of section 475.050 129
may petition the court to have the social service agency 130
removed as guardian. The court shall grant the petition if 131
it finds that the petitioner is qualified and will act in 132
the best interests of the disabled or incapacitated person. 133
The removal of a social service agency under such 134
circumstances does not require evidence that the agency 135
committed acts of misfeasance warranting the agency's 136
removal pursuant to section 475.110. 137
6. A social service agency acting as a guardian 138
pursuant to subdivision (4) of subsection 1 of this section 139
may only authorize the withholding or withdrawal of 140
artificially provided nutrition or hydration as prescribed 141
under section 404.820. 142
475.060. 1. Any person may file a petition for the 1
appointment of himself or herself or some other qualified 2
person as guardian of a minor. Such petition shall state: 3
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(1) The name, age, domicile, actual place of residence 4
and post office address of the minor if known and if any of 5
these facts is unknown, the efforts made to ascertain that 6
fact; 7
(2) The estimated value of the minor's real and 8
personal property, and the location and value of any real 9
property owned by the minor outside of this state; 10
(3) If the minor has no domicile or place of residence 11
in this state, the county in which the property or major 12
part thereof of the minor is located; 13
(4) The name and address of the parents of the minor 14
and whether they are living or dead; 15
(5) The name and address of the spouse, and the names, 16
ages and addresses of all living children of the minor; 17
(6) The name and address of the person having custody 18
of the person of the minor or who claims to have custody of 19
the person of the minor; 20
(7) The name and address of any guardian of the person 21
or conservator of the estate of the minor appointed in this 22
or any other state; 23
(8) If appointment is sought for a natural person, 24
other than the public administrator, the names and addresses 25
of wards and disabled persons for whom such person is 26
already guardian or conservator; 27
(9) The name and address of the trustees and the 28
purpose of any trust of which the minor is a qualified 29
beneficiary; 30
(10) The reasons why the appointment of a guardian is 31
sought; 32
(11) A petition for the appointment of a guardian of a 33
minor may be filed for the sole and specific purpose of 34
school registration or medical insurance coverage. Such a 35
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petition shall clearly set out this limited request and 36
shall not be combined with a petition for conservatorship; 37
(12) If the petitioner requests the appointment of co- 38
guardians, a statement of the reasons why such appointment 39
is sought and whether the petitioner requests that the co- 40
guardians, if appointed, may act independently or whether 41
they may act only together or only together with regard to 42
specified matters; 43
(13) That written consent has been obtained from any 44
person, including a public administrator, who is to be 45
appointed as a co-guardian; and 46
(14) Whether the petitioner knows of any other court 47
having jurisdiction over the minor and the name of the 48
court, if known. 49
2. Any person may file a petition for the appointment 50
of himself or herself or some other qualified person as 51
guardian or limited guardian of an incapacitated person. 52
Such petition shall state: 53
(1) If known, the name, age, domicile, actual place of 54
residence, and post office address of the alleged 55
incapacitated person, and for the period of three years 56
before the filing of the petition, the most recent 57
addresses, up to three, at which the alleged incapacitated 58
person lived prior to the most recent address, and if any of 59
these facts is unknown, the efforts made to ascertain that 60
fact. In the case of a petition filed by a public official 61
in his or her official capacity, the information required by 62
this subdivision need only be supplied to the extent it is 63
reasonably available to the petitioner; 64
(2) The estimated value of the alleged incapacitated 65
person's real and personal property, and the location and 66
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value of any real property owned by the alleged 67
incapacitated person outside of this state; 68
(3) If the alleged incapacitated person has no 69
domicile or place of residence in this state, the county in 70
which the property or major part thereof of the alleged 71
incapacitated person is located; 72
(4) The name and address of the parents of the alleged 73
incapacitated person and whether they are living or dead; 74
(5) The name and address of the spouse, the names, 75
ages, and addresses of all living children of the alleged 76
incapacitated person, the names and addresses of the alleged 77
incapacitated person's closest known relatives, and the 78
names and relationship, if known, of any adults living with 79
the alleged incapacitated person; if no spouse, adult child, 80
or parent is listed, the names and addresses of the siblings 81
and children of deceased siblings of the alleged 82
incapacitated person; the name and address of any agent 83
appointed by the alleged incapacitated person in any durable 84
power of attorney, and of the presently acting trustees of 85
any trust of which the alleged incapacitated person is the 86
grantor or is a qualified beneficiary or is or was the 87
trustee or cotrustee and the purpose of the power of 88
attorney or trust; 89
(6) The name and address of the person having custody 90
of the person of the alleged incapacitated person; 91
(7) The name and address of any guardian of the person 92
or conservator of the estate of the alleged incapacitated 93
person appointed in this or any other state; 94
(8) If appointment is sought for a natural person, 95
other than the public administrator, the names and addresses 96
of wards and protectees for whom such person is already 97
guardian or conservator; 98
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(9) The factual basis for the petitioner's conclusion 99
that the person for whom guardianship is sought is unable or 100
partially unable by reason of some specified physical, 101
mental, or cognitive condition to receive and evaluate 102
information or to communicate decisions to such an extent 103
that the person lacks capacity to meet essential 104
requirements for food, clothing, shelter, safety, or other 105
care such that serious physical injury, illness, or disease 106
is likely to occur; 107
(10) The reasons, incidents, and specific behaviors 108
demonstrating why the appointment of a guardian or limited 109
guardian is sought; 110
(11) If the petitioner suggests the appointment of co- 111
guardians, a statement of the reasons why such appointment 112
is sought and whether the petitioner suggests that the co- 113
guardians, if appointed, may act independently or whether 114
they may act only together or only together with regard to 115
specified matters; and 116
(12) Written consent has been obtained from any 117
person, including a public administrator, who is to be 118
appointed as a co-guardian. 119
3. If the person filing the petition seeks the 120
appointment of an emergency guardian, the petition shall 121
include the same requirements as provided in subsection 1 of 122
this section and shall request the appointment per the 123
requirements provided in subsection [15] 16 of section 124
475.075. 125
475.075. 1. Except as otherwise provided in section 1
475.062, when a petition for the appointment of a guardian 2
ad litem, guardian, or conservator for any potential ward or 3
protectee, who is then referred to as the respondent, is 4
filed under this chapter on grounds other than minority, the 5
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court, if satisfied that there is good cause for the 6
exercise of its authority, shall promptly set the petition 7
for hearing. 8
2. The respondent shall be served in person with the 9
following: A copy of the petition; a written notice stating 10
the time and place the proceeding will be heard by the 11
court, the name and address of appointed counsel, and the 12
names and addresses of the witnesses who may be called to 13
testify in support of the petition; and with a copy of the 14
respondent's rights as set forth in subsections [9 and] 10 15
and 11 of this section. The notice shall be signed by the 16
judge or clerk of the court and served in person on the 17
respondent a reasonable time before the date set for the 18
hearing. A written notice stating the time and place for 19
the petition to be heard by the court, and the name and 20
address of counsel appointed to represent the respondent 21
shall be served upon the spouse, parents, children who have 22
reached the age of eighteen, any person serving as the 23
respondent's guardian, conservator, limited guardian, or 24
limited conservator, any person proposed to serve as 25
guardian or conservator, any person having power to act in a 26
fiduciary capacity with respect to any of the respondent's 27
financial resources, any person having the respondent's care 28
and custody known to the petitioner, and any co-tenants or 29
co-depositors with the respondent. Each person so listed 30
shall be served in any manner permitted by section 472.100. 31
If no such spouse, parent, or child is known, notice shall 32
be given to at least one of the respondent's closest 33
relatives who have reached eighteen years of age. 34
3. If the public administrator is nominated as 35
guardian or conservator or at any stage of the proceeding is 36
being considered by the court to be nominated as guardian or 37
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conservator, the public administrator shall receive a copy 38
of the petition from the petitioner or the court and any 39
accompanying documents, including exhibits and medical 40
opinions, receive written notice indicating the date and 41
time of the proceeding, and have an opportunity to attend 42
and be heard. 43
4. If the division of probation and parole is 44
nominated to serve as guardian in a forensic guardianship or 45
at any stage of the proceeding is being considered by the 46
court to be nominated as guardian in a forensic 47
guardianship, the division of probation and parole shall 48
receive a copy of the petition from the petitioner or the 49
court and any accompanying documents, including exhibits and 50
medical opinions, receive written notice indicating the date 51
and time of the proceeding, and have an opportunity to 52
attend and be heard. 53
5. Upon the filing of a petition under the provisions 54
of subsection 1 of this section or for the approval on 55
behalf of the respondent of a transaction pursuant to 56
section 475.092 or for the rendition of emergency medical 57
treatment under the provisions of section 475.123, the court 58
shall immediately appoint an attorney to represent the 59
respondent in the proceeding. The attorney shall visit the 60
respondent at least twenty-four hours prior to the hearing 61
unless the court finds good cause for waiving this 62
requirement. If the attorney finds that the respondent is 63
capable of understanding the matter in question or of 64
contributing to the advancement of the respondent's 65
interest, the attorney shall obtain from the respondent all 66
possible aid. If the attorney finds that the respondent is 67
so impaired that the respondent cannot communicate or 68
participate in the proceedings, the attorney shall consider 69
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all circumstances then prevailing and act with care to 70
safeguard and advance the interests of the respondent. 71
[5.] 6. If the court enters an order appointing an 72
attorney for the respondent, it shall specify that the 73
attorney shall have the right to obtain all medical and 74
financial information of the respondent from medical care 75
providers and financial institutions, and no medical care 76
provider or financial institution shall be liable for 77
damages or otherwise for the release of this information to 78
the attorney appointed for the respondent. The court shall 79
allow a reasonable attorney's fee for the services rendered, 80
to be taxed as costs of the proceeding. Upon entry of 81
appearance by private counsel on behalf of the respondent, 82
the court may permit the court-appointed attorney to 83
withdraw only if after a hearing the court finds cause to 84
permit the withdrawal. The private counsel shall meet the 85
requirements of the court-appointed attorney in representing 86
the respondent as provided in subsection [4] 5 of this 87
section. The respondent's attorney shall not also serve as 88
guardian ad litem or conservator ad litem for the respondent 89
unless and until a judgment granting guardianship, 90
conservatorship, limited guardianship, or limited 91
conservatorship has been entered by the court. If the 92
attorney for the respondent has filed or intends to file an 93
appeal of such judgment, the attorney for the respondent 94
shall not serve as guardian ad litem or conservator ad litem 95
for the respondent until all proceedings in connection with 96
such appeal have been finally resolved. The petitioner 97
shall not nominate an attorney for the respondent. 98
[6.] 7. The court may direct that the respondent be 99
examined by a physician, licensed psychologist, or other 100
appropriate professional if the other professional has 101
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experience or training in the alleged mental, physical, or 102
cognitive impairment. The court-appointed physician, 103
licensed psychologist, or other professional shall, prior to 104
examination, explain to the respondent in simple language, 105
the following: 106
(1) That the purpose of the examination is to produce 107
evidence which may be used to determine whether the 108
respondent is incapacitated, disabled, partially 109
incapacitated, or partially disabled; 110
(2) That respondent has the right to remain silent; 111
(3) That anything respondent says may be used at the 112
court hearing, and in making the determination of incapacity 113
or disability. 114
[7.] 8. The court-appointed physician, licensed 115
psychologist, or other professional shall submit a report in 116
writing to the court and to counsel for all parties. It 117
shall not be a valid objection to the review of the report 118
by the court or the attorneys for the parties that the court 119
will be responsible for the ultimate determination of 120
incapacity or partial incapacity. If other objections to 121
the report are made by any party, the court may order a 122
hearing for the limited purpose of determining whether the 123
court shall admit the report. The court may allow a 124
reasonable fee for the services rendered by the physician, 125
licensed psychologist, or other professional to be taxed as 126
costs in the proceeding. 127
[8.] 9. If prima facie proof of partial or complete 128
incapacity or disability, with or without the court-ordered 129
evaluation as provided in subsections [6 and] 7 and 8 of 130
this section, is made upon motion by any party or the court 131
on its own motion, a physician, licensed psychologist, or 132
other appropriate professional is competent and may be 133
SB 1317 27
compelled by the court to testify as to information acquired 134
from the respondent, despite otherwise applicable 135
testimonial privileges. Evidence received under this 136
subsection that would otherwise be privileged and 137
confidential may not be used in any other civil action or 138
criminal proceeding without the consent of the holder of the 139
privilege. Any resulting report shall be shared with the 140
respondent and counsel for all parties but shall not be used 141
in any other civil action or criminal proceeding without the 142
consent of the holder of the privilege. 143
[9.] 10. The petitioner has the burden of proving 144
incapacity, partial incapacity, disability, or partial 145
disability by clear and convincing evidence. 146
[10.] 11. The respondent shall have the following 147
rights in addition to those elsewhere specified and shall be 148
advised of these rights by the attorney for the respondent: 149
(1) The right to be represented by an attorney; 150
(2) The right to have a jury trial; 151
(3) The right to present evidence in the respondent's 152
behalf; 153
(4) The right to cross-examine witnesses who testify 154
against the respondent; 155
(5) The right to remain silent; 156
(6) The right to have the hearing opened or closed to 157
the public as the respondent elects; 158
(7) The right to a hearing conducted in accordance 159
with the rules of evidence in civil proceedings, except as 160
modified by this chapter; 161
(8) The right to be present at the hearing; 162
(9) The right to appeal the court's decision. 163
[11.] 12. If the court finds that the respondent 164
possesses capacity to manage the respondent's essential 165
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requirements for food, clothing, shelter, safety, and other 166
care or that the respondent possesses the ability to manage 167
the respondent's financial resources, the court shall deny 168
the petition. On the other hand, if the court finds that 169
the capacity of the respondent to receive and evaluate 170
information or to communicate decisions is impaired to such 171
an extent as to render the respondent incapable of managing 172
some or all of the respondent's essential requirements for 173
food, clothing, shelter, safety or other care so that 174
serious physical injury, illness, or disease is likely to 175
occur, or that the capacity of the respondent to receive and 176
evaluate information or to communicate decisions is impaired 177
to such an extent so as to render the respondent unable to 178
manage some or all of the respondent's financial resources, 179
the court shall appoint a guardian or limited guardian, a 180
conservator or limited conservator, or both in combination. 181
[12.] 13. If the court finds the respondent to be in 182
some degree incapacitated or disabled, or both, the court, 183
in determining the degree of supervision necessary, shall 184
apply the least restrictive alternative principle as defined 185
in this chapter and shall not restrict the respondent's 186
personal liberty or the respondent's freedom to manage the 187
respondent's financial resources to any greater extent than 188
is necessary to protect the respondent's person and the 189
respondent's financial resources. The limitations imposed 190
upon the authority of the guardian or conservator as set 191
forth in the findings of the court shall be stated in the 192
letters of the guardian or conservator and shall be set 193
forth in the notice of first publication of letters of 194
conservatorship granted. 195
[13.] 14. Before appointing a guardian or conservator, 196
the court shall consider whether the respondent's needs may 197
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be met without the necessity of the appointment of a 198
guardian or conservator, or both, by a less restrictive 199
alternative including, but not limited to, the following: 200
(1) Evidence that the respondent has appointed an 201
attorney-in-fact in a durable power of attorney executed by 202
the respondent before the petition was filed; 203
(2) The management of the beneficial interests of the 204
respondent in a trust by a trustee; 205
(3) Evidence that a representative payee has been 206
appointed to manage the respondent's public benefits; 207
(4) Supported decision-making agreements or the 208
provision of protective or supportive services or 209
arrangements provided by individuals or public or private 210
services or agencies; 211
(5) The use of appropriate services or assistive 212
technology; 213
(6) The appointment of a temporary emergency guardian 214
ad litem or conservator ad litem under subsection [15] 16 of 215
this section; or 216
(7) The appointment of a limited guardian or 217
conservator. 218
[14.] 15. The court shall make and recite in its order 219
detailed findings of fact stating: 220
(1) The extent of the respondent's physical, mental, 221
and cognitive incapacity to manage essential requirements 222
for food, clothing, shelter, safety, or other care; 223
(2) The extent of the respondent's physical, mental, 224
and cognitive incapacity to manage the respondent's 225
financial resources; 226
(3) Whether the respondent requires placement in a 227
supervised living situation and, if so, the degree of 228
supervision needed; 229
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(4) Whether the respondent's financial resources 230
require supervision and, if so, the nature and extent of 231
supervision needed; 232
(5) Whether the respondent retains the right to vote; 233
(6) Whether the respondent is permitted to drive a 234
motor vehicle if the respondent can pass the required 235
driving test; and 236
(7) Whether the respondent retains the right to marry. 237
[15.] 16. If it is alleged in a petition that an 238
alleged incapacitated or disabled respondent has no guardian 239
or conservator and an emergency exists that presents a 240
substantial risk that serious physical harm will occur to 241
the respondent's person or irreparable damage will occur to 242
the respondent's property because of the respondent's 243
failure or inability to provide for the respondent's 244
essential human needs or to protect the respondent's 245
property, the court may, with notice to such person's 246
attorney, as provided in subsection [4] 5 of this section, 247
and service of notice upon such person as provided in 248
subsection 2 of this section, and, with or without notice to 249
other persons interested in the proceeding, after hearing, 250
appoint an emergency guardian ad litem or conservator ad 251
litem for a specified period not to exceed ninety days and 252
for specified purposes. Except for good cause shown, the 253
court shall hold a hearing on petitions filed under this 254
section within five business days of the filing of the 255
petition. Orders appointing the guardian or conservator ad 256
litem may be modified upon motion and hearing. Only after a 257
hearing and a showing of continuing emergency need, the 258
court may order the extension of the appointment of an 259
emergency guardian ad litem or conservator ad litem from 260
time to time, not to exceed ninety days each. A guardian ad 261
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litem or conservator ad litem may be removed at any time and 262
shall make any report the court requires. Proceedings under 263
this subsection shall not be employed as alternative to 264
proceedings for the involuntary detention and treatment of a 265
mentally ill person under the provisions of chapter 632. If 266
no petition for guardianship, conservatorship, limited 267
guardianship, or limited conservatorship has been filed 268
within the first ninety days following the granting of 269
emergency authority under this section, the court may 270
terminate the authority granted under the emergency letters 271
upon motion of the attorney for the respondent and a finding 272
that doing so would not be manifestly contrary to the 273
respondent's interest. 274
475.079. 1. If it appears to the court or if it is 1
found by the jury or the court upon proof by clear and 2
convincing evidence that the person for whom a guardian is 3
sought is incapacitated as defined in this law and that the 4
respondent's identified needs cannot be met by a less 5
restrictive alternative, the court may appoint a guardian of 6
the person. 7
2. If it is found that the person for whom a 8
conservator of the estate is sought is a minor or is 9
disabled as defined in section 475.010 by a disability other 10
than or in addition to minority and that the respondent's 11
identified needs cannot be met by a less restrictive 12
alternative, the court may appoint a conservator of the 13
estate, who may be the same person appointed guardian of the 14
person. 15
3. The court shall not appoint the public 16
administrator to serve as guardian, limited guardian, 17
conservator, limited conservator, emergency guardian, 18
emergency conservator, guardian ad litem, or conservator ad 19
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litem unless notice is first given to the public 20
administrator as provided in subsection 3 of section 475.075 21
and the public administrator has an opportunity to 22
participate in any hearing on such matter, including the 23
right to cross examine witnesses and to offer witnesses and 24
evidence. The public administrator may waive notice and the 25
opportunity to participate. 26
4. The court shall not appoint the division of 27
probation and parole to serve in a forensic guardianship 28
unless notice is first given to the division of probation 29
and parole as provided in subsection 4 of section 475.075 30
and the division of probation and parole has an opportunity 31
to participate in any hearing on such matter, including the 32
right to cross examine witnesses and to offer witnesses and 33
evidence. The division of probation and parole may waive 34
notice and the opportunity to participate. 35
475.120. 1. The guardian of the person of a minor 1
shall be entitled to the custody and control of the ward and 2
shall provide for the ward's education, support, and 3
maintenance. 4
2. A guardian or limited guardian of an incapacitated 5
person shall act in the best interest of the ward. A 6
limited guardian of an incapacitated person shall have the 7
powers and duties enumerated by the court in the 8
adjudication order or any later modifying order. 9
3. Except as otherwise limited by the court, a 10
guardian shall make decisions regarding the adult ward's 11
support, care, education, health, and welfare. A guardian 12
shall exercise authority only as necessitated by the adult 13
ward's limitations and, to the extent possible, shall 14
encourage the adult ward to participate in decisions, act on 15
the adult ward's own behalf, and develop or regain the 16
SB 1317 33
capacity to manage the adult ward's personal affairs. The 17
general powers and duties of a guardian of an incapacitated 18
person shall include, but not be limited to, the following: 19
(1) Assure that the ward resides in the best and least 20
restrictive setting reasonably available; 21
(2) Assure that the ward receives medical care and 22
other services that are needed; 23
(3) Promote and protect the care, comfort, safety, 24
health, and welfare of the ward; 25
(4) Provide required consents on behalf of the ward; 26
(5) To exercise all powers and discharge all duties 27
necessary or proper to implement the provisions of this 28
section. 29
4. A guardian of an adult or minor ward is not 30
obligated by virtue of such guardian's appointment to use 31
the guardian's own financial resources for the support of 32
the ward. If the ward's estate and available public 33
benefits are inadequate for the proper care of the ward, the 34
guardian or conservator may apply to the county commission 35
pursuant to section 475.370. 36
5. No guardian of the person shall have authority to 37
seek admission of the guardian's ward to a mental health or 38
intellectual disability facility for more than thirty days 39
for any purpose without court order except as otherwise 40
provided by law. 41
6. Only the director or chief administrative officer 42
of a social service agency serving as guardian of an 43
incapacitated person, or such person's designee, is legally 44
authorized to act on behalf of the ward. 45
7. A social service agency serving as guardian of an 46
incapacitated person shall notify the court within fifteen 47
days after any change in the identity of the professional 48
SB 1317 34
individual who has primary responsibility for providing 49
guardianship services to the incapacitated person. 50
8. Any social service agency serving as guardian may 51
not provide other services to the ward. 52
9. In the absence of any written direction from the 53
ward to the contrary, a guardian may execute a preneed 54
contract for the ward's funeral services, including 55
cremation, or an irrevocable life insurance policy to pay 56
for the ward's funeral services, including cremation, and 57
authorize the payment of such services from the ward's 58
resources. Nothing in this section shall interfere with the 59
rights of next-of-kin to direct the disposition of the body 60
of the ward upon death under section 194.119. If a preneed 61
arrangement such as that authorized by this subsection is in 62
place and no next-of-kin exercises the right of sepulcher 63
within ten days of the death of the ward, the guardian may 64
sign consents for the disposition of the body, including 65
cremation, without any liability therefor. A guardian who 66
exercises the authority granted in this subsection shall not 67
be personally financially responsible for the payment of 68
services. 69
10. A forensic guardianship shall operate in 70
accordance with the provisions of this section. 71
✓