Should you become incapacitated without having made a durable power of attorney, you may need a guardian. Guardianship is a legal procedure by which a court declares an adult incompetent and appoints someone to manage financial matters, living arrangements, and medical care decisions. Guardianship is a legal relationship whereby a probate court gives a person (the guardian) the power to make personal decisions for another (the ward). The procedure is sometimes referred to as conservatorship, custodianship, or civil commitment.
Older adults do not need a guardian simply by reason of age or minor mental or physical impairments, provided they are still able to manage their personal and financial affairs. The courts will not appoint a guardian for you merely because your family believes that you are making foolish or risky decisions. Courts will appoint a guardian if you have a physical or mental condition which impairs your decision-making capacity or your ability to avoid harm to yourself or to others.
Guardianship is ordinarily not necessary for an incapacitated person who has appointed an agent under a durable power of attorney. However, if an agent has not been appointed, your friends or family may start legal proceedings to have a guardian appointed. If you disagree, you can fight the proceedings for guardianship. This may be appropriate if you can't decide who to select as your agent or what to specify in a living will. Guardianship may also be preferred if you fear that your family members will try to force their interests, rather than yours, upon your agent or doctor. However, guardianships are more expensive than powers of attorney because of' court fees, bond premiums, and the fees of experts who will testify during the legal proceedings.
A family member or a friend can initiate the proceedings by filing a petition in the probate court in the county where the individual resides. A medical examination by a licensed physician may be necessary to establish the individual's condition. A court of law will then determine whether the person is unable to meet the essential requirements for his/her health and safety.
A conservatorship is a legal relationship whereby the probate court gives a person (the conservator) the power to make financial decisions for another (the protectee). The court proceedings are very similar to those of guardianship except the court determines whether an individual lacks the capacity to manage his or her financial affairs. If so, the court appoints a conservator to make monetary decisions for the individual. Often the court appoints the same person to act as both guardian and conservator for the individual. Like the guardian, the conservator is required to report to the court yearly.
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A minor needs a guardian of his or her person when the minor has no living parents, when the parents cannot be found, or when the parents are unable or unwilling to care for the minor. Often, a guardianship is sought in lieu of adoption. A guardianship may be required to obtain medical treatment for the child or for school registration.
As a general rule, only a child's parents have the legal right to make decisions concerning the care and upbringing of that child. Legal guardianship of a minor is the process for granting that legal authority to someone other than the child's parents. This is usually done only in cases where the child is not in the care of a parent because the parent is unable to care for the child.
A petition must be filed in court. The petition will identify the child, the child's parents and siblings, the proposed guardian, the child's financial circumstances, and the reasons why a guardianship is needed. A notice of the court hearing is sent to the child's parents and adult siblings and to the child. At the court hearing, the judge decides whether the guardianship is in the child's best interests. The law presumes that the child is best placed with a parent, so the person seeking guardianship has the burden to prove otherwise if a parent objects to the guardianship.
A minor needs a guardian/conservator of his or her estate when he or she has or is about to receive, any money or property with a value such as from insurance, from an inheritance, or from the settlement of a personal injury case. A guardianship of the estate is not needed if the only asset of the minor is the right to collect social security benefits.
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There are special circumstances that a Parent can assign or delegate their parental powers on a temporary basis. Pursuant to Missouri statutes section 475.024, A parent of a minor, by a properly executed power of attorney, may delegate to another individual, for a period not exceeding one year, any of his or her powers regarding care or custody of the minor child such as medical treatment or education, except his or her power to consent to marriage or adoption of the minor child. This is an informal guardianship that you can authorize yourself as opposed to a permanent guardianship and other situations that may require approval by a court. Whether the child is traveling on a trip, staying with a relative while you are away, or staying with someone because of an emergency, it is a good method to have a written document giving another adult your authorization to care for the child. Some school districts do not accept this type of power of attorney to register a child in their district.
Probate Court is not the proper court for the determination of custody rights between the two legal parents of a minor child.
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