When is someone legally incapacitated for purposes of a guardianship/conservatorship? In Missouri, an “incapacitated person” is one who is unable by reason of any physical/mental condition to receive and evaluate information or to communicate decisions to such an extent that he/she lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur. Section 475.010, RSMo(10). If the Court finds that these circumstances exist, then a guardianship will be ordered.
In terms of a conservatorship, emphasis will be placed on whether the supposed incapacitated individual can manage his/her financial resources. Managing financial resources consists of either those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, income or any assets, or those actions necessary to prevent waste, loss or dissipation of property, or those actions necessary to provide for the care and support of such person or anyone legally dependent upon such person by a person of ordinary skills and intelligence commensurate with his or her training and education. Section 475.010, RSMo (12).
Because attorneys and judges do not typically have the medical knowledge or wherewithal to determine if these conditions are met, Courts will require medical evidence. In Saint Louis County, for example, physician interrogatories need to be filed to illustrate that a medical provider believes legal incapacity exists. The physician interrogatories will also ask about what type of environment is suitable for the protectee and inquire generally about other medical recommendations.
In theory, it is possible that a guardianship can be ordered without a conservatorship. However, based on experience, this is rare.
Once an adjudication of incapacity has been made, does the protectee have legal capacity to do anything? It depends on whether the adjudication is of partial or full incapacity. If there is a finding of full incapacity, then the protectee is presumed to be incompetent; if there is a finding of partial incapacity, then that presumption does not exist. Section 475.078. This is important because, among other things, it will bear on whether the individual has the capacity to execute other legal documents, like wills, trusts, etc. As a general matter, though, Courts will (rightfully so) look with skepticism on document executed after a protectee is found to be fully/partially incapacitated. Independent of document execution, other important issues such as whether the protectee can vote in elections or operate a car also need to be decided.
Contact us with questions.