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Link Hearing, Guardianships-Conservatorships

Guardianship-conservatorship proceedings are subject to their own procedural and substantive rules. The general gist of the proceeding is that a petitioning party alleges that someone else is incapacitated and that the petitioner (or someone else) should be appointed as a guardian to protect the incapacitated person’s person and a conservator should be appointed to protect the incapacitated person’s assets.

When a guardianship-conservatorship petition is filed, the Court is required to immediately appoint an attorney to represent the alleged incapacitated person. Section 475.075.3, RSMo. The court appointed attorney is required to protect the alleged incapacitated person’s interests and determine whether he or she has the physical and mental capacity to make decisions about the proceeding. This court-appointed attorney generally acts as an advocate for the alleged incapacitated person throughout the proceeding.

There are instances, though, in which the alleged incapacitated person attempts to hire a private attorney in addition to or in place of a court appointed attorney. Before a private attorney can represent an alleged incapacitated person in a guardianship-conservatorship proceeding, there must be a “Link hearing.” In re Link, 713 S.W.2d 487, 493 (Mo. 1986). At the hearing, the trial court evaluates whether the alleged incapacitated person wishes to be represented by private counsel and has the capacity to make such a choice. Id. And, if there is capacity to make such a decision, the trial court evaluates whether private counsel is free from outside influence. Id.

Contact with questions about probate litigation, estate litigation, guardianships or conservatorships.