Legal Articles

Statutory and Virtual Representation, Probate Litigation

“Virtual representation” is a judge-made preclusion doctrine where an order or judgment against one party binds another. Specifically, it precludes and prevents the relitigation of a claim if “the interest of the represented and the representative are so identical that the inducement and desire to protect the common interest may be assumed to be the…

Incapacity, Business Transactions

Legally, several things happen when someone is adjudicated as incapacitated and a guardian or conservator is appointed for the protectee (i.e., the incapacitated person). Perhaps most significantly, the protectee loses his or her right to enter into business transactions. Instead, it is the conservator’s responsibility (usually with court approval) to enter into such transactions. Section…

Removal of Conservator, "Interested Persons"

Like with any fiduciary (e.g., trustee, guardian, attorney-in-fact), a conservator appointed to represent the property/assets of a minor or legally incapacitated adult may be removed for cause. Section 475.082.5, RSMo allows any “interested person” to file a motion/petition alleging that a conservator is not discharging his/her statutory responsibilities and duties or has not acted in the…

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