The Guardianship and Conservatorship Process
Explanation of Terms:
Petitioner (or Applicant) – Person seeking to be appointed Guardian or Conservator.
Respondent – Person over whom a guardianship/conservatorship is sought. Once a hearing is held, the “Ward” is the person for whom the Guardian is responsible; a “Protectee” is the person for whom a Conservator is responsible for their finances.
Guardian – Person appointed by the Court to be responsible for “care of the person”.
Conservator – Person appointed by the Court to be responsible for “care of the estate (finances)”. A Conservator is required when the Respondent has assets in his/her name to which a “representative payee” cannot be assigned. If a person receives only Social Security, SSD or SSI payments, a conservator generally does not need to be appointed.
Documents Needed and Scope of Appointment
When a person (the “Petitioner”) seeks to be appointed guardian (and conservator, if applicable) of another person (the “Respondent”) the Respondent’s treating physician, preferably a psychiatrist, must complete interrogatories that ask for the Respondent’s diagnosis and symptoms and whether the physician believes the Respondent needs a guardian/conservator. The completed interrogatories are accepted by the court as the physician’s testimony (as long as the attorney appointed by the court to represent the Respondent agrees) in lieu of the physician’s personal appearance in court.
Depending upon the reason the guardianship is being sought, it may be possible to obtain a limited guardianship for a particular purpose. For example, if an individual is mentally ill and can function and care for himself or herself independently when they are compliant with their treatment and medication regimen, it is possible that a limited guardianship for medical decision-making is appropriate. Whether a limited guardianship is appropriate depends entirely upon the opinion of the Respondent’s treating or evaluating physician.
When a guardian is appointed, the Respondent loses the right to choose where to live, to vote, and operate a motor vehicle. If a conservator is appointed, the Respondent cannot enter into contracts or handle his or her own finances.
The court requires that the Respondent live in the “least restrictive environment” commensurate with his/her needs and abilities. The “Least Restrictive Environment” is determined and recommended by the physician’s opinion regarding this subject.
It is possible for the Respondent to retain the right to vote if the Petition requests that this right be retained and there is witness testimony that the Respondent has voted in the past and would want to continue to do so. In some limited cases, the Respondent may retain the right to drive if there is specific and detailed physician opinion indicating that the Respondent may retain this right, which is usually only retained in cases where an individual with mental illness is capable of safely operating a motor vehicle when compliant with his/her treatment regimen.
Physician Statement (Interrogatories)
Sometimes physicians charge a fee for completion of interrogatories, which if the physician is the Respondent’s treating physician is inappropriate, because the alternative is to be compelled to appear in Court. The physician fee can be paid for separately by the Petitioner or charged against a retainer that may have been obtained by the Petitioner’s attorney. Since the effective date of HIPAA, some physicians are very reluctant or refuse to provide such information without the Respondent’s release or the authorization of a legally responsible party (i.e., pursuant to a Durable Power of Attorney), which in this case, begs the question. In these situations, the Petitioner’s attorney must either subpoena the physician or obtain interrogatories from another willing physician. Once the interrogatories are received, the petition can be filed with the court.
Occasionally, a Respondent may not have a treating physician. It is sometimes a challenge to arrange for a physician evaluation for an individual who is fearful of or refuses to leave the home or be seen by a physician. If the Respondent has no treating physician or has not been evaluated by a physician, the attorney representing the Petitioner may ask that the Court to order an independent psychiatric evaluation. Likewise, if the Respondent has been under the care of a physician but refuses to release his or her medical records, the attorney representing the Petitioner may subpoena the Respondent’s medical records to identify the physician to whom interrogatories should be sent and to ascertain whether there is documentation supporting a determination of incapacity.
A hearing is required in all guardianship cases, the court assigns a hearing date shortly after the petition, and interrogatories are filed. At that time, the court (as required by law) appoints a lawyer, the Guardian ad Litem (“GAL”), to represent and meet with the Respondent. The GAL’s fee must also usually be paid by the Respondent (however, if he/she is found to not need a guardian; the Petitioner must pay the GAL’s attorneys fee and the court costs incurred by the Respondent), but when the Respondent has no assets (i.e, receives only SSI), the GAL’s fee may, at the discretion of the Judge, be taxed to the County. Additionally, in rare cases, the Court may also grant a request that the filing fee be waived.
In most uncontested (unopposed) cases, only one witness is needed, that being the person seeking to be appointed guardian/conservator. If there are no friends or close family able to testify, a caregiver at the hospital or facility at which the Respondent lives can testify; so long as such person is familiar with the Respondent’s symptoms. In most cases, the hearing is non-adversarial, even if the Respondent opposes the appointment of a guardian/conservator. A Respondent has a right to a jury trial and the right to cross-examine witnesses and can, if he/she insists, obtain a jury trial and cross-examine witnesses. A contested case is one that involves someone challenging whether a guardian/conservator is needed and when multiple parties are seeking to be appointed guardian/conservator or oppose the person seeking to be appointed.
Service of Respondent and Meeting with Court-Appointed Attorney
Shortly after the Petition is filed with the Court, the petition is taken by the petitioning attorney to the Sheriff’s office for service. Again, by law, the Respondent is required to be served a copy of the petition by a member of the Sheriff’s Department. This occurs even in cases where the Respondent is unresponsive. In situations when the Respondent is in a hospital or nursing home, the Sheriff will give the petition to a nurse or other staff person at the facility for the Respondent.
The Sheriff usually serves the Respondent with the petition approximately 5-7 days after the petition is filed with the Court and the GAL will call the facility sometime thereafter to make an appointment to meet the Respondent. Sometimes, the GAL waits to meet the Respondent until only a day or two before the hearing. The GAL must attempt to contact and meet with the Respondent before the hearing. It is not uncommon for Respondents to refuse to meet with the GAL, but the GAL must nonetheless attempt such meeting. Even if a Respondent is completely incapacitated and uncommunicative, the court requires that the GAL meet and see the Respondent. The GAL makes a report to the court of his/her meeting with the Respondent and makes a recommendation regarding whether a guardian is needed.
Notification of Close Relatives
By law, the all close relatives (“interested parties”) of the Respondent must be notified by mail of the hearing date, location and time and receive a copy of the petition. If a relative’s last address is not known, but the city of last residence is known, the Court requires that a “due and diligent search” be made for the current address of such person(s). If the person cannot be located after such search, the court requires that an affidavit of “Due and Diligent Search” be filed explaining how the search was conducted.
Who May Serve; Public Administrator as Guardian/Conservator
If a family member or friend is unable or unwilling to serve as guardian/conservator, the petition may request that the Public Administrator serve in such capacity. Whoever serves, such person must provide written consent to serve and the hearing will be held. In St. Louis County, it is important to note that the Probate Court has a rule that a guardian cannot involuntarily admit a Ward to a mental health facility for a period in excess of 30 days.
After the hearing, if a conservator is required and appointed, the Court requires that the Conservator be bonded through the purchase of a bond, usually in the amount of the estate’s assets, to ensure that the estate assets are not misspent. The usual cost of a bond is an annual fee of approximately $100 per $10,000 in assets of the estate.
Requirements of Conservator – Duties and Costs
When a Conservator is appointed, the Court requires that three documents be prepared by an attorney and filed with the court after the hearing. Within 30 days of the hearing, the court requires the conservator to inventory and list in detail the Protectee’s assets and income, all bank accounts and property owned. This document is called an Inventory. Since the Court requires that all expenditures be pre-approved, it is advisable that a petition requesting on-going approval of regularly occurring monthly expenses be filed to avoid having to request monthly approval of such expenses (a “Statement of Monthly Expenses”). Other than monthly expenditures that have been pre-approved by the court, court approval must be obtained in advance for all other expenditures. In the event an emergency expense is incurred, the court may ratify (approve the expenditure after the fact) the expense after it has arisen. Finally, all receipts and vouchers must be retained to justify each expense. At the end of each appointment year, the court sends the Conservator a blank Annual Settlement that must be prepared by an attorney identifying the amounts reflected in the Inventory and every single expenditure and income that enters the estate after that time.
A Conservatorship can be an adminstratively burdensome and costly endeavor and lasts as long as the assets of the Protectee unless the Protectee is restored to independence.
If a Conservator is appointed, there are additional costs associated with the Court required bond, the attorneys’ fees for preparation of the Inventory, Statement of Monthly Expenses, any petitions required by the Court to request approval for and ratification of other expenses, permission to sell the Protectee’s property and the annual expense for the preparation of the Annual Settlement.
Duties of Guardian
If only a Guardian is appointed, on the anniversary date of the appointment, the court mails the Guardian a two-page form asking the guardian whether a Guardian is still needed, the address of the Guardian and Ward and if the Ward’s residence is the least restrictive environment for the Ward.
The estimated court costs of initiating a Guardianship/Conservatorship are:
- The attorneys’ fees of the Petitioner’s attorney
- St. Louis County filing fee is approximately $700
- St. Louis City filing fee is approximately $200
- Sheriff service fees in St. Louis County are $36
- The attorneys’ fee of the GAL (this is covered in the City deposit)
Court costs may change at any time. Costs and fees may also increase if the case becomes contested- by either the Respondent, family members, other “interested parties” or if there are delays in obtaining needed information. A non-contested guardianship usually costs between $2,000-$3,000 and a contested guardianship can cost $5,000-$15,000 (or more depending upon the litigiousness of the parties).