HOUSE BILL NO. 2041 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE TERRY.
4175H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 475.010, 475.040, 475.050, 475.060, 475.061, 475.075, 475.082, 475.115, 475.120, and 475.361, RSMo, and to enact in lieu thereof ten new sections relating to guardianships and conservatorships.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 475.010, 475.040, 475.050, 475.060, 475.061, 475.075, 475.082, 2 475.115, 475.120, and 475.361, RSMo, are repealed and ten new sections enacted in lieu 3 thereof, to be known as sections 475.010, 475.040, 475.050, 475.060, 475.061, 475.075, 4 475.082, 475.115, 475.120, and 475.361, to read as follows: 475.010. When used in this chapter, unless otherwise apparent from the context, the 2 following terms mean: 3 (1) "Adult", a person who has reached the age of eighteen years; 4 (2) "Claims", liabilities of the protectee arising in contract, in tort or otherwise, before 5 or after the appointment of a conservator, and liabilities of the estate which arise at or after the 6 adjudication of disability or after the appointment of a conservator of the estate, including 7 expenses of the adjudication and of administration. The term does not include demands or 8 disputes regarding title of the protectee to specific assets alleged to be included in the estate; 9 (3) "Conservator", one appointed by a court to have the care and custody of the estate 10 of a minor or a disabled person. A "limited conservator" is one whose duties or powers are 11 limited. The term "conservator", as used in this chapter, includes limited conservator unless 12 otherwise specified or apparent from the context; 13 (4) "Conservator ad litem", one appointed by the court in which particular litigation is 14 pending regarding the management of financial resources on behalf of a minor, a disabled
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 2041 2
15 person, or an unborn person in that particular proceeding or as otherwise specified in this 16 chapter; 17 (5) "Custodial parent", the parent of a minor who has been awarded sole or joint 18 physical custody of such minor, or the parent of an incapacitated person who has been 19 appointed as guardian of such person, by an order or judgment of a court of this state or of 20 another state or territory of the United States, or if there is no such order or judgment, the 21 parent with whom the minor or incapacitated person primarily resides; 22 (6) "Disabled" or "disabled person", one who is: 23 (a) Unable by reason of any physical, mental, or cognitive condition to receive and 24 evaluate information or to communicate decisions to such an extent that the person lacks 25 ability to manage the person's financial resources; or 26 (b) The term disabled or disabled person, as used in this chapter includes the terms 27 partially disabled or partially disabled person unless otherwise specified or apparent from the 28 context; 29 (7) "Eligible person" or "qualified person", a natural person, social service agency, 30 corporation or national or state banking organization qualified to act as guardian of the person 31 or conservator of the estate pursuant to the provisions of section 475.055; 32 (8) "Guardian", one appointed by a court to have the care and custody of the person of 33 a minor or of an incapacitated person. A "limited guardian" is one whose duties or powers are 34 limited. A "standby guardian" is one approved by the court to temporarily assume the duties 35 of guardian of a minor or of an incapacitated person under section 475.046. The term 36 guardian, as used in this chapter, includes limited guardian and standby guardian unless 37 otherwise specified or apparent from the context; 38 (9) "Guardian ad litem", one appointed by a court, in which particular litigation is 39 pending on behalf of a minor, an incapacitated person, a disabled person, or an unborn person 40 in that particular proceeding or as otherwise specified in this code; 41 (10) "Guardianship classification", classifications of guardianship that include 42 the following: 43 (a) "General guardianship", a guardianship in which a guardian ad litem is 44 appointed to a person who is found by a court of competent jurisdiction to be disabled 45 or a guardian is appointed to a person who is found by a court of competent jurisdiction 46 to be totally or partially incapacitated because of a physical, cognitive, or mental 47 condition. With respect to the guardianship order and the exercise of power by the 48 guardian or guardian ad litem, the guardian or guardian ad litem appointed may 49 pursue a course of action or an alternative that allows the person to live, learn, and 50 work with minimum restrictions, as deemed appropriate based on the incapacitated or 51 disabled person's physical, cognitive, or mental condition and financial means; HB 2041 3
52 (b) "Specialized guardianship", a guardianship in which a guardian ad litem is 53 appointed to a person who is found by a court of competent jurisdiction to be disabled 54 or a guardian is appointed to a person who is found by a court of competent jurisdiction 55 to be totally or partially incapacitated because of a physical, cognitive, or mental 56 condition and a medical condition that requires specialized medical care, treatment, 57 support, supervision, habilitation, or maintenance and without which the person's life, 58 health, welfare, or safety is in imminent danger. A guardian or guardian ad litem 59 appointed under a specialized guardianship may pursue a course of action or an 60 alternative that allows the incapacitated or disabled person to live, learn, and work with 61 minimum restrictions considering the person's physical, cognitive, mental, medical, or 62 other health care-related condition and financial means; 63 (c) "Forensic guardianship", a guardianship in which a guardian ad litem is 64 appointed to a person who is found by a court of competent jurisdiction to be disabled 65 or a guardian is appointed to a person who is found by a court of competent jurisdiction 66 to be totally or partially incapacitated because of a physical, cognitive, or mental 67 condition, but also: 68 a. Has a substantial criminal history of serious offenses; 69 b. Is on supervised or unsupervised probation or parole; 70 c. Is currently under a court order requiring or prohibiting a specified act or 71 action; 72 d. Is required to register as a sex offender; or 73 e. Has demonstrated substantial cause to believe the person is a danger to 74 himself, herself, or others or is likely to commit an offense or violate any term or 75 condition of his or her probation or parole or any court order. 76 77 Under a forensic guardianship, the guardianship shall operate as set forth under section 78 475.120; 79 (11) "Habilitation", a process of treatment, training, care, or specialized attention that 80 seeks to enhance and maximize the ability of a person with an intellectual disability, a mental 81 illness, a cognitive disability, or a developmental disability to cope with the environment and 82 to live as determined by the person as much as possible, as is appropriate for the person 83 considering his or her physical, cognitive, and mental condition and financial means or as 84 otherwise necessary or required by a specialized guardianship or forensic guardianship; 85 [(11)] (12) "Incapacitated person", one who is unable by reason of any physical, 86 mental, or cognitive condition to receive and evaluate information or to communicate 87 decisions to such an extent that the person, even with appropriate services and assistive 88 technology, lacks capacity to manage the person's essential requirements for food, clothing, HB 2041 4
89 shelter, safety or other care such that serious physical injury, illness, or disease is likely to 90 occur. The term incapacitated person as used in this chapter includes the term partially 91 incapacitated person unless otherwise specified or apparent from the context; 92 [(12)] (13) "Interested persons", spouses, children, parents, adult members of a ward's 93 or protectee's family, creditors or any others having a property right or claim against the estate 94 of a protectee being administered, trustees of a trust of which the ward or protectee is a 95 beneficiary, agents of a durable power of attorney for a ward or protectee, and children of a 96 protectee who may have a property right or claim against or an interest in the estate of a 97 protectee. This meaning may vary at different stages and different parts of a proceeding and 98 shall be determined according to the particular purpose and matter involved; 99 [(13)] (14) "Least restrictive alternative", with respect to the guardianship order and 100 the exercise of power by the guardian and consistent with the guardianship classification, 101 a course of action or an alternative that allows the incapacitated person to live, learn, and 102 work with minimum restrictions on the person, as are appropriate for the person considering 103 his or her physical, cognitive, medical, and mental condition and financial means. Least 104 restrictive alternative also means, taking into consideration the guardianship classification 105 and appropriateness for the person, choosing the decision or approach that: 106 (a) Places the least possible restriction on the person's personal liberty and exercise of 107 rights and that promotes the greatest possible inclusion of the person into his or her 108 community, as is appropriate for the person considering his or her physical, cognitive, 109 medical, and mental condition and financial means and his or her guardianship 110 classification; and 111 (b) Is consistent with meeting the person's essential requirements for health, safety, 112 habilitation, welfare, life, treatment, and recovery and protecting the person from abuse, 113 neglect, unnatural death, and financial exploitation; 114 [(14)] (15) "Manage financial resources", either those actions necessary to obtain, 115 administer, and dispose of real and personal property, intangible property, business property, 116 benefits, income or any assets, or those actions necessary to prevent waste, loss or dissipation 117 of property, or those actions necessary to provide for the care and support of such person or 118 anyone legally dependent upon such person by a person of ordinary skills and intelligence 119 commensurate with his or her training and education; 120 [(15)] (16) "Minor", any person who is under the age of eighteen years; 121 [(16)] (17) "Parent", the biological or adoptive mother or father of a child whose 122 parental rights have not been terminated under chapter 211, including: 123 (a) A person registered as the father of the child by reason of an unrevoked notice of 124 intent to claim paternity under section 192.016; HB 2041 5
125 (b) A person who has acknowledged paternity of the child and has not rescinded that 126 acknowledgment under section 193.215; and 127 (c) A person presumed to be the natural father of the child under section 210.822; 128 [(17)] (18) "Partially disabled person", one who is unable by reason of any physical, 129 mental, or cognitive condition to receive and evaluate information or to communicate 130 decisions to such an extent that such person lacks capacity to manage, in part, his or her 131 financial resources; 132 [(18)] (19) "Partially incapacitated person", one who is unable by reason of any 133 physical, mental, or cognitive condition to receive and evaluate information or to 134 communicate decisions to the extent that such person lacks capacity to meet, in part, 135 essential requirements for food, clothing, shelter, safety, or other care without court-ordered 136 assistance; 137 [(19)] (20) "Protectee", a person for whose estate a conservator or limited conservator 138 has been appointed or with respect to whose estate a transaction has been authorized by the 139 court under section 475.092 without appointment of a conservator or limited conservator; 140 [(20)] (21) "Seriously ill", a significant likelihood that a person will become 141 incapacitated or die within twelve months; 142 [(21)] (22) "Social service agency", a charitable organization organized and 143 incorporated as a not-for-profit corporation under the laws of this state and which qualifies as 144 an exempt organization within the meaning of Section 501(c)(3), or any successor provision 145 thereto of the federal Internal Revenue Code; 146 [(22)] (23) "Standby guardian", one who is authorized to have the temporary care and 147 custody of the person of a minor or of an incapacitated person under the provisions of section 148 475.046; 149 [(23)] (24) "Treatment", the prevention, amelioration or cure of a person's physical, 150 medical, cognitive, intellectual, developmental, and mental illnesses or incapacities; 151 [(24)] (25) "Ward", a minor or an incapacitated person for whom a guardian, limited 152 guardian, or standby guardian has been appointed. 475.040. If it appears to the court, acting on the petition of the guardian as set forth 2 under section 475.120, the conservator, the respondent or of a ward over the age of fourteen, 3 or on its own motion, at any time before the termination of the guardianship or 4 conservatorship, that the proceeding was commenced in the wrong county, or that the 5 domicile of the ward or protectee has changed to another county, or in case of conservatorship 6 of the estate that it would be for the best interest of the ward or disabled person and his estate, 7 the court may order the proceeding with all papers, files and a transcript of the proceedings 8 transferred to the probate division of the circuit court of another county. The court to which 9 the transfer is made shall take jurisdiction of the case, place the transcript of record and HB 2041 6
10 proceed to the final settlement of the case as if the appointment originally had been made by 11 it. 475.050. 1. Notwithstanding any provision of law, before appointing any other 2 eligible person as guardian of an incapacitated person, or conservator of a disabled person, the 3 court shall [consider the suitability of appointing any of] appoint one of the following 4 persons, listed in the order of priority, who are qualified under section 475.055, are 5 suitable, and appear to be willing to serve: 6 (1) If the incapacitated or disabled person is, at the time of the hearing, able to make 7 and communicate a reasonable choice, any eligible person nominated by the person; 8 (2) Unless otherwise prohibited by law, any eligible person nominated in a durable 9 power of attorney executed by the incapacitated or disabled person, or in an instrument in 10 writing signed by the incapacitated or disabled person and by two witnesses who signed at the 11 incapacitated or disabled person's request, before the inception of the person's incapacity or 12 disability; 13 (3) The spouse, parents, adult children, adult brothers and sisters and other close adult 14 relatives of the incapacitated or disabled person or any person nominated by a previous 15 guardian, provided that the guardian is in good standing with the court; 16 (4) Any other eligible person or, with respect to the estate only, any eligible 17 organization or corporation, nominated in a duly probated will of such a spouse or relative. 18 2. Consistent with subsection 4 of section 475.120 or section 475.343, when 19 making its decision regarding whom to appoint as guardian of an incapacitated person, 20 the court shall not include the financial resources of the prospective guardian in 21 determining who is an eligible person under subsection 1 of this section. 22 3. If the incapacitated person is to reside with the prospective guardian and a 23 complaint is made against the prospective guardian claiming the guardian is unsuitable 24 because the guardian resides in substandard housing that presents a dangerous or 25 insanitary condition for the incapacitated person and such condition would jeopardize 26 the incapacitated person's health, safety, welfare, or life, the court shall not disqualify 27 the prospective guardian unless it is proved that the substandard housing exists and is 28 the result of the prospective guardian's willful negligence. The court shall cause the 29 department of health and senior services to investigate and file a report with the court 30 on its findings before the court makes a determination regarding whom to appoint as 31 guardian. 32 4. If an incapacitated person currently resides in or will reside in any dwelling 33 other than with the prospective guardian and a complaint is filed with the court that 34 either the current or the prospective dwelling is substandard and presents a dangerous 35 or insanitary condition that would jeopardize the incapacitated person's life, health, HB 2041 7
36 safety, or welfare, the court shall cause the department of health and senior services or 37 department of mental health to investigate and file a report with the court on its 38 findings, for which the court shall give weight when determining whom to appoint as 39 guardian. 40 5. Substandard housing includes, but is not limited to, any existing or 41 prospective circumstance or situation that places the incapacitated person in jeopardy 42 of being physically, sexually, or emotionally abused or neglected or killed because of the 43 willful negligence to prevent or correct the circumstance or situation by the eligible 44 person under subsection 1 of this section. 45 6. The court shall not deny a petition for guardianship because: 46 (1) The petitioner resides in a low-income dwelling or low-income housing 47 district or area; 48 (2) The petitioner's financial income is the result of any disability that qualifies 49 him or her for any type of Social Security income; 50 (3) Of the petitioner's employment wages; or 51 (4) The petitioner is unemployed at the time of petitioning the court for 52 guardianship. 53 7. Consistent with the rights given to wards under subdivision (5) of subsection 1 54 of section 475.361, the court shall consider the wishes of the incapacitated person as to 55 whom the incapacitated person wishes to resi