Probate As It Affects the Estates of Adults (Estate FAQ)

What is a conservator?

In Missouri we presume that everyone who is over the age of 18 is able to make financial decisions for themselves; however, when someone is not able to make financial decisions for themselves, either because they have become stricken with a disease or lost touch with reality or never possessed the ability to make decisions for themselves then a family member or a friend can ask the court to appoint him or her conservator for the impaired person. When this happens, the judge seeks the advice of Medical professionals who have examined the person and determined that they are unable to take care of their affairs. At this point the Judge will then determine if the person is legally disabled and will appoint a conservator to make those decisions for the person.

Conservators will only have charge of a person’s finances and property. Guardians deal with issues such as placement, and healthcare decision for somebody that is not able to make those decisions for themselves. It is possible for someone to serve as both guardian and conservator.

A conservator is not free to make financial decisions for the person on their own. They act in very close consultation with their attorney and the probate court that oversees them. Every year they must provide a complete accounting of how the disabled person’s money was spent, where it was spent, how it was invested, what interest was earned, and other various procedures to be certain that the conservator is doing the best job that they can to oversee the finances of the incapacitated person.

Once a person is declared incapacitated, they are known as a protectee. To further assure that the conservator acts in the best interest of a protectee, the court will require a conservator to post a bond in the amount of the assets of the estate that they are administering. This bond works essentially like an insurance policy for the protectee, so that if assets are missing from the estate, that is attributable to the conservator, the bond can reimburse the estate. The task of acting as a conservator for someone else is extremely difficult and in most jurisdictions in Missouri, cannot be carried out without the assistance of an attorney. During my time as a staff attorney to the St. Louis County Probate Court I assisted many conservators and attorneys for conservators in completing their duties on behalf of their protectees. If I can now offer this service to you, please be certain to call me at the numbers listed at the bottom of this page.

 

What is a guardian (for an adult)?

A guardian is a person who is appointed to make all of the non-financial decisions for somebody who has become incapacitated. The process works very much like

This process is often conducted at the same time as proceedings to declare the person as disabled such that a conservator is appointed. The guardian and conservator can be the same person or they may not be, depending on the specific needs of that case.

 

How can I be prepared if I become disabled?

The State of Missouri has set up certain procedures for helping people who can no longer manage their affairs and finances. (These are guardianships and conservatorships.) If you are not happy with the way these procedures work, you can opt- out of them by taking certain actions when you are competent. One such action is to execute a Power of Attorney. This is a document that gives somebody else the right and ability to manage your affairs and sign your name. People who are competent may have a Power of Attorney if for example they are traveling oversees or will be otherwise out of touch with their affairs. Also, people who fear that they might become incompetent may also execute a Power of Attorney. In these cases, it is called a Durable Power of Attorney because the Power of Attorney is durable enough to withstand their incapacity. The Power of Attorney is a specific document that appoints an Attorney-in-Fact who will act on your behalf. The Attorney-in-Fact can be given broad powers or narrow powers, or they can be given the default powers listed in the Missouri Statutes.

It is important to consider very carefully what powers will be given to the Attorney-in-Fact and it is extremely important that the Attorney-in-Fact be somebody that can be trusted. The Attorney-in-Fact will essentially have complete control of the affairs of the person. Unlike a conservator, they will not have the supervision of the court, nor will they normally have posted a bond to compensate the principal if there is any impropriety with the finances. A Power of Attorney document can also include certain healthcare directives, either to assist medical professionals in determining when vital life-support should be withheld or applied to you. This Power of Attorney document can also grant the power to make such healthcare decisions to the Attorney-in-Fact.

There are many important aspects to drafting, executing, and maintaining a Power of Attorney document. Most attorneys in the State of Missouri can prepare such a document and you should feel free to contact me to prepare such a document. Attorneys can also help you prepare a separate healthcare directive or durable power of attorney affecting healthcare.

 

How does a guardianship terminate?

Because a court-appointed guardian is responsible to a court, only a court can terminate the guardianship. There are several ways in which a guardianship can terminate. If the ward passes away, the guardianship is automatically terminated. If there is any impropriety by the guardian, or failure to maintain affairs properly for to provide for the care and well being of the ward, then anyone may point this out to the court by petitioning the court to remove that person as guardian. This does not end the incapacity of the guardian, but rather will set the stage to appoint a new guardian after the current guardian or guardians is removed. A guardianship is also terminated if the ward recovers the ability to care for him or herself and petitions the court for restoration guardian may also resign, when this happens, they must inform the court of their resignation and the court will then seek a replacement guardian. All of these avenues for terminating a guardianship require the advice and counsel of a competent Missouri lawyer. You can contact me to help you with these matters.

 

How does a conservatorship terminate?

Because a court-appointed conservator is responsible to a court, only a court can terminate the conservatorship. There are several ways in which a conservatorship can terminate. If the ward passes away, the conservatorship is automatically terminated. If there is any impropriety by the conservator, or failure to maintain assets properly for to provide for the care and well being of the protectee, then anyone may point this out to the court by petitioning the court to remove that person as conservator. This does not end the disability of the protectee, but rather will set the stage to appoint a new conservator after the current conservator or conservators is removed. A conservatorship is also terminated when the ward recovers the ability to care for himself or herself and petitions the court for restoration. All of these avenues for terminating a conservatorship require the advice and counsel of a competent Missouri lawyer. You can contact me to help you with these matters.

It is necessary whenever a conservatorship ends or is removed, that the conservator make a final accounting for all assets of the estate. Just as they have done up until that point, a conservator must make a final accounting through the date of their removal or resignation to document to the court how all expense to the conservator have been paid or monies invested.

A conservator may also resign, when this happens, they must inform the court of their resignation and the court will then seek a replacement conservator.

 

How do I write a living will?

Many people have very strong opinions about whether they wish to be kept alive by life-support equipment and/or the heroic efforts of doctors. In response to this, many people draft what is referred to as a living will or more technically referred to as a healthcare directive, that is instructions as to how you wish healthcare decisions to be made if you are unable to make then yourself.

Let me define some terms so that you can better understand the way this area of the law works.

First, a healthcare directive is your specific feelings on what medical treatments should be applied or withheld from you under certain circumstances. These can be either very brief or may list a long detailed list of which treatments you wish to have withheld or applied to you under specific conditions.

Durable power of attorney for healthcare

Generally speaking, a power of attorney is somebody’s grant of power to allow someone else to act on his or her behalf, specifically
with regard to healthcare. Durable indicates that the power of attorney document continues to be in effect even though the person who granted the power of attorney may be incapacitated and unable to make decisions for themselves. Together or separately people refer to one of both of these documents as a living will. You do not necessarily need to contact an attorney to execute a durable of power of attorney and healthcare directive. The Missouri Bar offers a form, which you may fill out yourself. It includes simple questions and answers as well as instructions. Unfortunately, because everyone has a different opinion of how they wish their healthcare to be directed, this document only works for some people. If you disagree with the directions given in it or if             you disagree with the way it gives power to other people, it could be very difficult to modify on your own. In those cases, you                     should certainly seek the advice of an attorney. I would be more than happy to help you in such an instance.

 

Do I need a will?

This can be a very difficult question and the answer depends on a number of questions about both what your assets are and how you wish for them to be distributed.

Let me begin by dispelling a common misperception about wills: A validly written will does not avoid probate. Indeed, a document is not even considered a valid will until it has been “probated.” Many people believe that a will is a means of avoiding probate, but it does not. A will avoids “intestacy.” Intestacy laws are the default laws passed by the legislature of the State of Missouri that determine how a person’s property is distributed if they do not have a will or a valid and complete will, when they die. These default laws are not any sort of bizarre way of passing the property to the State of Missouri or to divide the property with your distant cousins. In most cases, people who draw a will distribute their property in the exact same way that the laws of intestacy would distribute their property, which in the vast majority of cases, is to the children of the decedent. However, there are still reasons to have a will, even if you would want your property to pass to the same people as it would pass through the law of intestacy. Having a will allows the personal representative (which in the past was sometimes called your executor) to act with more independence from the court and to expend less money in administering the estate. This can often be a significant savings from the estate, after the person has died and is frequently, reason enough to make a will. Also, people frequently like to use wills to create trusts that begin upon their death, or to indicate their wishes for who should act as guardian of their children, should both parents of the child pass away.

Writing a will is a very complicated procedure. In helping people administer estates, I frequently discover writings in which the decedent expressed their wishes for how their property should be distributed. However, because they did not follow the proper formality, their property still passes according to the laws of intestacy, without being able to take advantages of any of the shortcuts available to estates driven by wills. If you are interested in drafting a will, I hope that you attempt to contact my office or the office of another attorney. More often than not, the wills that people try to draft themselves or that they draft based on forms from an office supply store or software package, are not effective and end up costing their estate more money than they save them.

 

What is a power of attorney?

A power if attorney is a document that somebody signs to grant somebody authority to act on their behalf. In most cases, this means the ability to sign their signature on their behalf. A person must be competent in order to grant a power of attorney. However, if the power of attorney is “durable” then the person granted the power of attorney may continue to act even if the grantor of the power of attorney becomes incapacitated later. The person that acts under a power of attorney document is called an “attorney-in-fact”. Attorney-in- fact documents can be very complicated and require different things, depending upon their use. For example, a power of attorney document allowing somebody to transfer real estate requires substantially more than a simple power of attorney document allowing somebody to get a tax return on your behalf. As in the case of a will, I find that people frequently make errors in drafting a power of attorney document or use the wrong documents for the wrong situations, such that I always advise people to see an attorney to help draft a power of attorney document.

I think the most important thing that people do not often realize about a power of attorney document, is that it is a very important grant of power and that it can be very easily abused by the attorney-in-fact. You should always be very sure that the person, who is getting the power to act as attorney-in-fact, under the power of attorney document, is very trustworthy. I quite frequently see people who have regretted their decision or whose other relatives regret the decision to grant a power of attorney later, when it is too late to change such document. Generally speaking, a power of attorney document can be withdrawn or cancelled at any time when the person is still competent and a new one can be issued. Indeed, a new one can be issued without canceling another, so that a person has more than one power of attorney. Once a person becomes incapacitated, they may no longer legally sign a power of attorney document. In order to have somebody else act on their behalf, there must be court proceedings to have them declared incapacitated and have a conservator appointed for them.

 
 

The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney- client relationship with an attorney because you have viewed this page. This information applies only to the laws of the State of Missouri in the United States of America.

 

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