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Appellant is a mentally retarded adult, and is incapable of making decisions about his own care and treatment.  Appellant also requires twenty-four hour supervision.  Appellant was admitted to a Department of Mental Health (DMH) facility after being found incompetent to proceed to trial on arson charges.  One year later, DMH filed a petition for appointment of guardian, recommending that the Public Administrator be appointed guardian.  At an evidentiary hearing, Appellant testified that he wanted his mother to serve as his guardian.  Appellant’s mother also testified that she would be willing to serve in that capacity.  At trial a DMH social worker and a staff psychiatrist both acknowledged that Appellant and his family shared a strong and healthy relationship.  However, both professionals stated that the mother would have to make some difficult decisions concerning Appellant’s care, and that would likely have a negative impact on Appellant’s relationship with his mother.

Held:

The trial found Appellant incapacitated and appointed the Public Administrator as Appellant’s guardian.  The trial court considered appointing Appellant’s mother as guardian and conservator, but concluded that the appointment was not in Appellant’s best interest because tough decisions would need to be made for Appellant.  The court felt that in order to maintain a good family relationship, it would be better that someone other than Appellant’s mother make those tough decisions.

On Appeal:

Section 475.050(2) states that except for good cause shown, the court shall make its appointment in accordance with the incapacitated or disabled person’s most recent nomination of an eligible person qualified to serve as guardian of the person or conservator of the estate.  Good cause exceptions include dissension in the family, adverse interest of the relative or the incapacitated person, or any other reason why a stranger would best serve the interest of the incapacitated person.

According to Section 475.050, the trial court was obligated to consider Appellant’s desire to have his mother serve as guardian, and appoint the Public Administrator only for good cause.  Here, Appellant had a healthy relationship with his family.  There were no specific adverse interests between Appellant and his mother.  There were also no findings that Appellant’s mother was unfit.  The trial court’s determination that a stranger should serve as Appellant’s guardian appears to be based on the prediction that there may be possible negative results from Appellant’s mother making tough decisions about his care.  On remand, the trial court should more fully develop the record and make specific findings as to why, in light of the statutory preference for family members, the trial court approved the Public Administrator instead of Appellant’s mother.

Factual Background:

Daughter brought action requesting appointment of conservator for her father, who was 87 years old, suffered from dementia, memory loss, and confusion.  He believed there was gold buried on farm property he sought to purchase.

Held: 

Following a jury trial, the Circuit Court, Clay County, Larry Dale Harman, J., appointed the Public Administrator as conservator for father.  Father appealed.

On Appeal:

The evidence was insufficient to support finding that father was disabled with respect to financial decisions, and thus, appointment of conservator was not warranted.  Reversed and remanded. The court held that under V.A.M.S. § 475.030(1), the primary responsibility of a conservator is to provide financial assistance to a disabled person. The burden of proving that the person is disabled is on the petitioner claiming that a conservator needs to be appointed. V.A.M.S. § 475.010(4)(a), 11. A determination of whether to appoint a conservator is based on the condition of the person at the time of the trial.

Here, evidence was insufficient to support a finding that the father was disabled with respect to financial decisions, and thus, appointment of conservator was not warranted; although evidence showed that father, who was 87 years old, suffered from dementia, memory loss, and confusion, and that he believed there was gold buried on farm property he sought to purchase, none of the evidence presented indicated that father was incapable of managing or communicating about his finances due to physical or mental condition.

The court held that memory loss and old age alone are insufficient to justify the appointment of a conservator. V.A.M.S. § 475.030(1).

Factual Background:

Conservator of children’s estates filed two annual settlements for the children’s estate.  The Circuit Court disapproved the annual settlements because the conservator failed to properly provide receipts for the all of the expenditures made on behalf of the children.  There was no question that the expenditures were made on behalf of the children, but the conservator was able to provide “vouchers” evidencing the expenditures for a small portion of the total provided in the settlement for each child.  The court refused the settlements and held the conservator personally liable for the expenditures made from the children’s estate which were not supported by receipts.

On Appeal:

A conservator will not be held to a standard of strict liability with regard to good faith expenditures he or she makes.  A conservator may, if he chooses, make expenditures from the estate under his control for the benefit of the ward without prior court approval.  If the conservator chooses not to obtain prior court approval he runs the risk of the court disallowing those expenditures and being held personally liable.  While a conservator is required to provide “vouchers” for all expenditures on behalf of the ward exceeding $75, a good faith failure to obtain receipts for such expenditures does not, in-and-of-itself, provide grounds for disallowance of the expenditures during settlement.  A conservator can only be found personally liable for failing to provide vouchers for such expenditures when the expenditures are improper, or when he has failed to utilize the degree of skill and prudence of an ordinary prudent man.

Rationale:

While Section 473.543 requires that “each expenditure of more than seventy-five dollars for which a [conservator] claims credit in any settlement shall be supported by vouchers executed by the person to whom the disbursement was made,” several courts have refused to hold guardians or conservators personally liable for expenditures or obligations where they were not at fault.  The court refused to hold conservators to a standard of strict liability when attempting in good faith to administer a wards estate.  Section 475.130.1 simply requires that the conservator use the degree of care, skill and prudence which an ordinarily prudent man uses in managing the property of, and conducting transactions on behalf of, others.  Further, 475.132.2 imposes liability on a conservator “only if he is personally at fault.”  In order to find a conservator individually liable, the court requires some fault or negligence on the part of the conservator before liability will be imposed.  Here, there is no question that the expenditures made by the conservator were made on behalf of the minor children.  The only wrongful conduct by the conservator was that he failed to properly maintain receipts for all the expenditures for which he was seeking settlement.  While the court did not condone this failure to comply with the statute requiring such receipts to be provided, the court refused to hold the conservator personally liable for what would otherwise be proper expenditures for a good faith failure to comply with the statute.

Factual Background:

In May of 2005 the probate court entered an order authorizing the appointment of a conservator for Laverne Sturmfels.  The probate court found that while the protectee was in need of a conservator, she was able to make and communicate a reasonable choice as to whom should serve as her conservator.  The protectee chose her nephew, Carl V. Frederick, who is the defendant in this action.  The protectee’s brother, Gus Sturmfels challenged the court’s appointment of the defendant, arguing that he had a conflict of interest with the protectee, that the protectee was unqualified to act as conservator for the protectee, and that the protectee has failed to properly discharge his responsibilities.  The probate court, sua sponte, raised the question of whether the plaintiff had standing as an “interested party” to challenge the appointment of the defendant as conservator for the protectee, because he was merely an heir with an expectancy interest in the estate of the protectee.

On Appeal:

While §475.082.5 allows any interested person to file a motion challenging the appointment of a guardian or conservator, the definition of “interested person” in §472.010(15) does not include an heir with an expectancy in the estate of the protectee because heirs have no standing in guardianship and conservatorship proceedings.  As such, parties with a mere expectancy interested in the estate of  the protectee have no standing to challenge the appointment of a guardian or conservator pursuant to §475.082.5

Rationale:

In order to have standing to appeal an order under the probate code, a party must be an aggrieved “interested person.”  §475.082.5 allows such an “interested person” to file a motion alleging that a conservator is not discharging his statutory responsibilities and duties or has not acted in the best interests of his protectee.  However, §475 does not provide a definition of an “interested person.”  However, as defined in §472.010(15) an interested person means “heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered and includes children of a protectee who may have a property right or claim against or an interest in the estate of a protectee.”  Here, the plaintiff’s relationship with the protectee under the probate code is that of an heir with an expectancy in her estate.  However, Missouri courts have consistently held that heirs have no standing in guardianship and conservatorship proceedings.  Accordingly, the court reasoned that Mr. Sturmfels is not an interested person in the administration of the Protectee’s estate and therefore lacks standing to appeal the probate court’s decision.

Factual Background:

In 2007, Mary Lou Schieber was adjudicated to be totally incapacitated and disabled, and attorney Scott Ross was appointed to represent Mrs. Schieber in the proceedings.  On July 15, 2008, the trial court set a hearing for August 1, 2008, during which it would conduct its annual review of Mrs. Schieber’s status.  Prior to the hearing, attorney Steven Petry filed an entry of appearance on behalf of Mrs. Schieber.  Mr. Ross then filed a motion to disqualify Mr. Petry.  He argued that Mr. Petry had a conflict of interest in that he had represented Mrs. Schieber’s sister in connection with her motion to remove Mrs. Schieber’s guardian and conservator.  He also argued that the prior adjudication declaring Mrs. Schieber totally incapacitated and disabled established that she did not have capacity to retain private counsel.  Mr. Petry argued that in order to determine whether Mrs. Schieber had the capacity to retain counsel, the court had to speak with Mrs. Schieber directly; therefore, her presence at the hearing was required.  Mr. Petry also argued that there was no conflict of interest created by his representation of Mrs. Schieber’s sister because the sister’s motion seeking to remove the guardian and conservator was filed on behalf of Mrs. Schieber.

Held:

The Circuit Court of Nodaway County granted the motion to disqualify, stating that Mr. Petry’s representation of Mrs. Schieber’s sister constituted a conflict of interest and that Mrs. Schieber did not have capacity to hire private counsel.  Steven Petry appealed.

On Appeal:

Affirmed.  An alleged incompetent is not required to be present at a hearing on a motion to disqualify private counsel.  The fact that an individual has been declared incapacitated does not entirely foreclose the possibility that the individual may retain private counsel, but it is within the court’s discretion to disqualify private counsel that it believes would not be free from outside influence.

Rationale:

Though an incapacitated person has the right to be present at a hearing on capacity or disability, there is no authority governing the right to be present at a hearing on a motion to disqualify private counsel.  A court is free to question the incapacitated person directly when ascertaining whether the individual has capacity to retain private counsel, but a court is not required to do so; therefore, an incapacitated person does not have a right to be present at a hearing concerning the disqualification of private counsel.

With respect to the retention of private counsel by an alleged incompetent, the trial court must be satisfied that the individual wishes to be represented by private counsel and has capacity to make such a choice.  If the individual does not have capacity, the court should be satisfied that private counsel is, and will continue to be, free from outside influence.  Pursuant to RSMo. §475.078.3, “[a] person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent.”  A court may declare an incapacitated person competent for other purposes, such as retaining private counsel, but it is not required to do so.  Thus, if a trial court believes that an incapacitated person does not have the capacity to choose their own counsel and that the private counsel would not be free from outside influence, the court can disqualify the private counsel.

Factual Background:     

Mary Lou Schieber’s son, Mr. Schieber, filed an application for appointment as guardian and conservator of Mrs. Schieber.  Mrs. Schieber’s sister, Ms. Hebert, then filed an application for appointment as limited guardian and limited conservator of Mrs. Schieber.  The probate court appointed attorney Scott Ross to represent Mrs. Schieber in the proceedings.  Following the hearing on the applications, the probate court found Mrs. Schieber totally incapacitated and disabled and appointed Mr. Schieber as guardian and conservator.  Ms. Hebert filed a motion for new trial or rehearing, which the court denied.

Ms. Hebert then filed a motion to remove Mr. Schieber as guardian and conservator, alleging that he had failed to discharge the duties of his appointment and was not acting in Mrs. Schieber’s best interests.  Mr. Schieber filed a motion to dismiss, arguing that Ms. Hebert was not an “interested person” as defined in RSMo. §472.010(15) and therefore lacked standing to bring a motion to remove him as guardian and conservator.  Ms. Hebert also filed a motion in which she sought the removal of Mr. Ross and the appointment of new counsel, arguing that Mr. Ross was not respecting Mrs. Schieber’s wishes in the course of his representation.

Held:

The Circuit Court of Nodaway County granted Mr. Schieber’s motion to dismiss, finding that Ms. Hebert did not have standing to bring the motion.  The Court also denied Ms. Hebert’s motion for removal of Mr. Ross as appointed counsel.  Ms. Hebert appeals.

On Appeal:      

Appeal dismissed.  The sister of an incapacitated person does not have standing to appeal from the probate court’s judgment if she is not an “interested person” as defined by the probate code.

Rationale:

A party’s right to appeal from the probate court’s judgment is purely statutory.  The probate court’s denial of a motion to remove a guardian or conservator is appealable, but the party appealing must have standing to do so under the probate code.  According to RSMo. §472.160.1, to have standing to appeal an order of the probate court, the party must be an “interested person aggrieved thereby.”  RSMo. §472.010(15) defines “interested person” as follows: “‘Interested persons’ mean heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered and includes children of a protectee who may have a property right or claim against or an interest in the estate of a protectee.”  An incapacitated person does not yet have heirs or devisees, and a sibling is not a spouse or creditor; so, if the sibling has no property right or claim against the ward’s estate, she does not qualify as an interested person.  Courts have refused to extend standing to a party who does not qualify as an “interested person” under the statute and only has a purely sentimental or filial interest in the ward or protectee.

Factual Background:

Due to lifelong mental disability, in 1988, when Ms. Banks was 18, an Indiana court appointed her mother and step-father as her legal guardians.  In 1997, following the death of Ms. Banks’ step-father, the Indiana court appointed her maternal aunt, Lavaughnda Rayoum, who lived in Ste. Genevieve, Missouri, as her co-guardian.  In 2006, Ms. Banks’ mother began suffering health problems and moved with her daughter to Ste. Genevieve, and Ms. Rayoum then began caring for both Ms. Banks and her mother, including handling their financial affairs and attending to their daily needs.

In November 2007, Ms. Banks’ sister, Kimberly Banks-Haines, petitioned for appointment as Ms. Banks’ guardian and conservator of her estate.  In January 2008, Ms. Banks’ mother and Ms. Rayoum filed an objection to Ms. Banks-Haines’ petition as well as a cross-petition seeking appointment as guardian and conservator.  Ms. Banks’ mother died before a hearing was held.  Following her mother’s death, Ms. Banks resided continuously at Ms. Rayoum’s home, along with Ms. Rayoum’s mentally disabled sister, where Ms. Rayoum provided for all of Ms. Banks’ needs, including finding her employment at the local sheltered workshop.  In June 2008, the trial court held a hearing on Ms. Banks-Haines’ petition and Ms. Rayoum’s cross-petition.

Held:

The Circuit Court of Ste. Genevieve County entered a judgment appointing Ms. Rayoum as Ms. Banks’ guardian and conservator.  Ms. Banks-Haines appealed.

On Appeal:

A court has discretion to appoint an aunt over an adult sibling as guardian and conservator of a disabled person, even when both are willing and qualified to serve, when such appointment serves the best interests of the disabled person.

Rationale:

An adult sibling and an aunt are both in the same preference class in RSMo. §475.050.1, which governs the appointment of guardians and conservators.  RSMo. §475.050.1(3) provides, in pertinent part, that a court shall consider the suitability of appointing “[t]he spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person.”  The statute’s language does not create sub-preferences within this class of relatives, and no case law has interpreted the statute in such a manner.  Additionally, RSMo. §475.050.1 clearly permits a court to use its discretion in appointing guardians or conservators despite statutory preference when such appointment serves the best interests of the disabled person.  When two relatives are both “suitable and fit to act,” the trial court should consider the disabled person’s best interests when determining which relative should serve, and it does not have to show preference to the closer relative.

Factual Background:

In 2007, appellant Jack Posey initially filed a Motion to Compel Visitation and Communication Privileges and/or for Removal of Guardian and later, after obtaining testimony from Mr. Posey’s treating physician, filed a Petition to Restore Ward/Protectee and to Terminate Guardianship/Conservatorship.

Respondent Julia Posey Bergin, appellant’s daughter, had been guardian and conservator of Mr. Posey since April 2003 as a result of the effects of Mr. Posey’s alcoholism on his physical and mental condition.  Mr. Posey has lived in an assisted living care facility for the duration of his guardianship, and he has refrained from alcohol during the guardianship, as well.  As a result of his sobriety, his physical and mental condition has improved greatly in the time since the guardianship was put in place.

As guardian, Mrs. Bergin placed restrictions on Mr. Posey’s visitation and communication privileges.  She restricted his phone calls, mail, and visitors to limit his contact with two particular individuals, his sister and a friend, who she believed were detrimental to his recovery and wellbeing.  Testimony was presented in the trial court from Mr. Posey’s care facility staff and doctors that they believed the restrictions were no longer necessary and that Mr. Posey’s cognitive and physical state had greatly improved in the time since the guardian was appointed; however, they did not know how he would function outside of a care facility and posited that he may return to drinking if not under supervision.

Held:        

The Circuit Court of Montgomery County denied Mr. Posey’s Motion to Compel Visitation and Communication Privileges and/or for Removal of Guardian, stating that the court did not have the authority to monitor the day-to-day actions of a guardian, and that Mrs. Bergin was discharging her duties and responsibilities while acting within Mr. Posey’s best interests.   The Court also denied Mr. Posey’s Petition to Restore Ward/Protectee and to Terminate Guardianship/Conservatorship, finding that Mr Posey did not have the capacity to meet his essential requirements and that Mr. Posey was in the least restrictive environment.  The Court also held that Mr. Posey did not have the right to vote.  Mr. Posey appealed.

On Appeal:

Affirmed.  A court has a duty to supervise a guardian’s activities to ensure that the guardian is property discharging her responsibilities, but it should give due consideration to a guardian’s discretion and avoid reviewing day-to-day decisions of the guardian.  Evidence that a ward has regained significant cognitive ability is not enough to restore capacity where there are concerns as to whether the ward could meet his essential requirements without supervision.  A guardian is allowed to place restrictions on a ward if they are necessary to prevent injury to the ward or others, and a guardian will not be removed so long as she is discharging her duties in the best interest of the ward.  Finally, a person adjudicated incapacitated cannot vote.

Rationale:

Section 475.082 RSMo. requires:

“At least annually, the court shall inquire into the status of every ward and protectee under its jurisdiction for the purpose of determining whether the incapacity or disability may have ceased and to insure that the guardian or conservator is discharging his responsibilities and duties in accordance with this chapter.”

This section does not give the court the authority or responsibility to review a guardian’s day-to-day decisions, acting almost as a co-guardian; the court is only to supervise the guardian’s activities, giving consideration to the guardian’s exercise of discretion.  In accordance with Section 475.082, a court should limit its review of the guardian’s activities to whether the guardian is discharging her duties in accordance with the law and acting in the ward’s best interests.

Guardianship can only be terminated when an incapacitated person has been restored to capacity.  This means that the incapacitated person must establish by a preponderance of the evidence that he has the capacity to meet his essential requirements for food, clothing, shelter, and safety.  Even where evidence is presented that a ward has significant cognitive ability, the court can deny restoration of capacity where there is concern as to whether the ward can meet his essential requirements because it is a preponderance of the evidence standard.

A guardian has powers and duties, which require her to act in the best interest of the ward.  A guardian must provide for a ward’s care in “the best and least restrictive setting reasonably available.”  A guardian will be removed only if she is not meeting these standards of responsibility and care.  Therefore, the guardian can place restrictions on the ward, as long as she is acting in the ward’s best interest and they are the least restrictive conditions necessary for his wellbeing.

Article 8, Section 2 of the Missouri Constitution and 115.133.2 RSMo. provide that no incapacitated person can vote.  Neither provision provides any exception to this rule.  Though it is possible for an incapacitated person to be incompetent for some purposes and not others, such as writing a will, there is no such exception provided in the provisions or in any case law regarding the ability to vote.

Factual Background:

Mother and Father resided together prior to Child’s birth, during which time they both abused drugs and alcohol.  Father was also verbally abusive to Mother.  A few months before Child was born, Mother began residing with Grandfather.  After Child’s birth, Father visited his child one time and provided very little support.  After Mother’s death, Grandfather informed Father that he intended to file for guardianship of Child.  Father expressed his belief that Child was in the right place and asked if he could maybe visit Child.  Father is still struggling financially, has no specific plan for child care while he works, and has no information on how to provide insurance for Child.

Phelps County Circuit Court, Sp. J. Clayton, Held:

The circuit court appointed Grandfather as guardian of Child.  Father appealed.

Court of Appeals, P.J. Rahmeyer, Held:

Affirmed.  Father argues that the probate court erred in granting guardianship because the finding that Father was unfit to care for Child was not supported by sufficient evidence.  Although there is a rebuttable presumption that a natural parent is the appropriate custodian for a minor child, it may be overcome by evidence that the parent is unfit, unable, or unwilling to take care of the child.  Father’s lack of planning for childcare, insurance, and housing, combined with his problems with alcohol, anger management, and marijuana provide the basis for a finding that he was currently unfit.

Factual Background:

Child lived primarily with Appellant for the first four months of life. Appellant was a friend of Mother and dated Mother’s father for ten years. Mother saw Child only sporadically due to drug use.  At four months old, Appellant took Child to the doctor who determined Child was born with drugs in his system.  Appellant then filed a petition for guardianship, with Mother’s consent, to avoid having Child enter foster care.  Appellant was appointed as Child’s guardian in February of 2009.

In September of 2009, Father and his mother, Respondent, went to visit Child.  Respondent learned for the first time that Appellant was Child’s guardian.  Father then filed a motion to terminate the guardianship and determine paternity.  In December of 2010, Father was declared to be Child’s father.  In July of 2011, Appellant’s guardianship was set aside on the grounds that Father was not properly served for the initial guardianship.  Appellant and Respondent then both filed petitions for guardianship of Child.  Father was incarcerated at the time and did not file a petition.

The Children’s Division performed a home study of Appellant’s home and found “several concerns” that would prevent them from becoming foster parents.  Trial was held in January of 2012.

Adair County Circuit Court, Swaim, J., Held:

Respondent was awarded guardianship of Child.  Appellant filed a motion for visitation and for rehearing that was denied.  Appellant appealed.

Court of Appeals, Hardwick, J., Held:

Affirmed.  Appellant argued the trial court failed to consider Child’s best interests because it did not discuss or apply the best interest factors in Section 452.375.2.  However, the court has no duty to make written findings.  A request for findings must be made on the record before the introduction of evidence or at a later time with the court’s permission.  Further, 452.375.2 applies to custody determinations in dissolution of marriage, not guardianship proceedings.  Instead, stability and permanency are the focus of a best interest analysis in a guardianship proceeding.  This analysis favored placement with Respondent.

Further, Appellant argued the court gave “undue weight” to the biological relationship between Respondent and Child.  However, biological relationship is a minor issue where preference only occurs when all other things are equal.  Based on the Children’s Division studies, Respondent’s home was a better choice than Appellant’s home, so biological relationship did not need to be considered.