MO-WINGS

The Work of the Missouri Guardianship Statutory Reform Task Force

Task Force began meeting in 2011. Task Force has 40+ members representing a

wide array of constituencies concerned with the elderly and persons with developmental disabilities or mental illnesses.

Revision of adult provisions is nearly complete.

Task Force has not focused on minors provisions but is seeking input from professionals who deal with minors

History of Project

Mo’s current statute was last substantially

revised in 1983 but many provisions date back to the early 1800s.

Statute has never been comprehensively revised.

During the past 30 years significant changes have been made to related Mo law – most significantly, the enactment of the MO Uniform Trust Code, the Durable Power of Attorney Law and the Durable Power of Attorney for Health Care Act.

Background

The past three decades have brought

increased understanding about incapacity and how best to support individuals with physical, mental, or cognitive impairments

Increases in technology and advances in community based supports for individuals with disabilities have changed the landscape across the country

Increased Support and Technology

Every 10 years or so there is a major national guardianship conference

designed to develop principles and best practices in guardianship. The Wingspread Conference was held in 1988, the Wingspan Conference

was held in 2001, and the Third Summit was held in 2011. The Third Summit issued some 70 recommendations dealing with

administration of guardianships and conservatorships. Major themes included:

-Appointment procedures should be tightened -There should be emphasis on limited guardianship -Counsel for respondent should be appointed in all cases -Guardians should receive training -Ward’s choices and substituted judgment should be emphasized

The Task Force has carefully considered these recommendations in developing its draft.

Guardianship Summit

The revised draft statute reflects

organizational changes that improve readability.

The structure of the revised statute is drastically simplified; provisions relating to the appointment of guardians and conservators for minors are separated.

Structural/Organizational Changes

The revised draft improves organization with

each article and organized provisions are listed sequentially.

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has been moved to the end and the obsolete Uniform Veterans’ Guardianship Act has been removed completely.

Structural/Organizational Changes

The revised draft is gender neutral and includes

appropriate, modernized language. The definition of “incapacitated person” has been

updated to reflect the understanding that individuals with developmental disabilities are capable of communicating decisions when supported to do so.

“Disabled person” has been replaced by “financially incapacitated person.”

These definitional changes reflect societal changes and also modern understandings of developmental disabilities and important advancements in assistive technology

Definitional Changes

The revised draft makes more explicit that the

appointment of a guardian or conservator should be a last resort. This is achieved by the requirement that the court consider whether the respondent will be fully protected by a lesser-restrictive alternative to guardianship.

It is further modernized by the requirement that the court consider appropriate services and assistive technology when determining whether the appointment of a guardian or conservator is appropriate.

These requirements better ensure that the respondent’s personal liberty and freedom are restricted only to the extent necessary

Appointment and Procedural Changes

In revised draft the Petition must now allege

factual basis for the petitioner’s conclusion and must recite reason, incidents, and specific behaviors demonstrating why the appointment of a guardian is sought.

The provision for Appointment of attorney, requirement for respondent’s attorney, and withdrawal of court-appointed attorney has been revised.

Appointment and Procedural Changes

Respondent’s Hearing Rights – the attorney

must advise respondent of respondent’s legal rights. Respondent must be advised of right to appeal court’s decision.

Court denial of petition – provision revised to emphasize alternatives and that detailed findings must be made in order of appointment

Order appointing guardian or conservator- provision revised to emphasize that appointment of guardian or conservator is a last resort

Appointment and Procedural Changes

The principle that a ward should maintain as much

autonomy as possible is furthered by mandatory addition to the court’s order granting complete or limited guardianship. The revised draft requires more detailed findings of fact and whether the respondent retains the right to vote.

The inclusion of these particularized findings requires more precision from the court in it’s articulation of each respondent’s needs and acknowledges that generalized orders have a tendency to unduly restrict the ward’s autonomy

Appointment and Procedural changes

A significant change in the administration of the

guardianship is the requirement that the guardian consult with the ward to ascertain the ward’s preferences, goals and needs and otherwise attempt to make the decision the ward would have made, if feasible.

In contrast to the “best interest” framework that previously governed, the new standard requires the guardian to first ask the ward his or her preferences.

The guardian shall exercise authority only as necessitated by the ward’s limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs.

Changes to Administration of Guardianship

The new draft standard promotes autonomy by

encouraging the ward’s participation in decision-making in all practicable circumstances.

The annual reporting requirements are also modernized, including an initial “report” that outlines the plan for the ward and detailed reporting at the annual report. The addition of these requirements encourages the guardian to become and remain acquainted with the ward and their changing needs and preferences.

Changes to Administration of Guardianship

The draft clarifies the rights and privileges that are

retained by the ward upon appointment of a guardian. This is accomplished by a new provision that clearly and concisely enumerates the ward’s rights.

Rights include the ward’s right to a guardian who acts in the ward’s best interest and is reasonably accessible to the ward.

Additionally, the ward is afforded the right to communicate with persons other than the guardian, except that such right may be limited for good cause.

These rights are safeguarded by language giving wards the right to bring an action alleging that they have been unjustly denied the rights set forth in this provision.

Changes to Administration of Guardianship

The revised draft contains a provision that

permits guardians or conservators to petition the court to increase or decrease their powers.

These considerations echo a major theme in the draft; the appointments and administration of guardianships and conservatorships, consideration must be given to the individual’s capacity to manage financial resources and their capacity to manage essential requirements for food, clothing, shelter, safety or other care.

Termination, Restoration, Other Changes in Appointment