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Guardianship & Conservatorship: Least Restrictive Environment

Guardianship and conservatorship are orders made with respect to a minor or legally incapacitated person. Guardianship empowers a guardian to make decisions regarding the protectee’s person; conservatorship empowers a conservator to make decisions regarding the protectee’s finances.

The general powers and duties of a guardian are enumerated in Section 475.120, which requires the guardian to “act in the best interest of the ward.” Specifically, the guardian must ensure that the (1) ward resides in the best and least restrictive setting reasonably available, (2) assure that the ward receives medical care and other services that are needed, (3) promotes and protects the care, comfort, safety, health, and welfare of the ward, and (4) provides required consents on behalf of the ward.

Of special interest is the phrase least restrictive environment. Under section 475.120.3(1), there shall be imposed on the personal liberty of the ward only such restraint as is necessary to prevent him from injuring himself and others and to provide him with such care, habilitation, and treatment as are appropriate for him considering his physical condition and financial means.  Such environment “must be no more restrictive of civil rights than is necessary for the adequate protection of an individual.” Estate of Posey v. Bergin, 299 S.W.3d 6, 22-23 (Mo. Ct. App. 2009) (citing In re Weissinger, 720 S.W.2d 430, 434 (Mo. Ct. App. 1986).

The least restrictive environment requirement, therefore, is aimed at allowing the ward to be as free and autonomous as possible. In a given case, what constitutes the least restrictive environment? Can the ward drive independently? Get groceries independently? Is 24 hour care necessary? It all depends on the facts and circumstances of a case. In more complex circumstances, healthcare providers will need to either appear in Court or complete interrogatories to permit the Court to make an informed decision.

Contact us with questions.