Changes to Chapter 475 RsMO, Mo’s Guardianship/Conservatorship Statute With the passage of SB 806, many important changes have been made in Mo’s guardianship/conservatorshhip law – What I am going to focus on today are the changes made to protect the “Rights” of individuals in guardianship/conservatorship proceedings.

Changes to the Petition The Petition for appointment of a guardian for an adult must now state the factual basis for the petitioner’s conclusion of incapacity; including incidents and specific behaviors that support why the appointment of a guardian or limited guardian is sought.

Changes to Notice of Petition The respondent shall be served in person with the following: A copy of the petition Written notice stating the time and place the proceeding will be heard The name and address of appointed counsel and of the witnesses who may be called to testify in support of the petition A copy of the Respondent’s Rights The notice shall be signed by the judge or clerk and served in person on the respondent a reasonable time before the date set for hearing

Public Administrator - Changes The Public Administrator, (if nominated) must receive the petition and any accompanying documents, including exhibits and medical opinions, and have the opportunity to attend and be heard at the hearing.

The Court Appointed Attorney Has the right to obtain respondent’s medical and financial information MUST visit respondent at least 24 hours before the hearing, although the court may waive this requirement upon finding of good cause If the attorney finds that the respondent is capable of understanding the matter in question, or of contributing to the advancement of the their interest, the attorney shall obtain from the respondent all possible aid. If the attorney finds that the respondent is so impaired they cannot communicate or participate in the proceedings, the attorney shall consider all circumstances then prevailing and act with care to safeguard and advance the interests of the respondent. The petitioner shall not nominate an attorney for the respondent Attorney cannot also serve as guardian ad litem or conservator ad litem and cannot be nominated by the petitioner Must inform the respondent of their rights

Respondent’s Rights at the Hearing Now requires respondent’s attorney to advise respondent of his or her rights Also add Respondent has the right to appeal the decision Rights carried forward from prior law: The right to be represented by an attorney The right to have a jury trial The right to present evidence in the respondent’s behalf The right to cross-examine witnesses who testify against the respondent The right to remain silent The right to have the hearing opened or closed to the public as the respondent elects The right to a hearing conducted in accordance with the rules of evidence in civil proceedings The right to be represented at the hearing

Less Restrictive Alternatives Now requires that before appointing a guardian or conservator, the court must consider whether the respondent’s needs may be met without the necessity of the appointment of a guardian or conservator, or both, by a less restrictive alternative. Less restrictive alternatives include, but are not limited to: Evidence that the respondent has a durable power of attorney The management of the beneficial interests of the respondent in a trust Evidence that a representative payee has been appointed to manage the respondent’s public benefit SUPPORTED DECISION-MAKING AGREEMENTS The use of appropriate services or assistive technology The appointment of a temporary emergency guardian or conservator The appointment of a limited guardian or conservator

Specific Findings Court order appointing guardian/conservator must include following detailed findings: Extent of respondent’s physical, mental, and cognitive incapacity to manage essential requirements for food, clothing, shelter, safety and to manage financial resources. Whether respondent requires placement in a supervised living situation and if so, degree of supervision required Whether respondent’s financial resources require supervision and, if so, the nature and extent of supervision needed Whether the respondent retains the right to vote Whether respondent is permitted to drive, if they can pass required driving test Whether respondent retains the right to marry

Retention of Rights The court order must now state whether the respondent retains the right to vote, marry or drive. The court may order that the respondent retains the right to vote, drive or marry, even if the respondent is adjudicated totally incapacitated.

Clear and Convincing Evidence To appoint a guardian, there must be clear and convincing evidence of incapacity but there must also be clear and convincing evidence that the respondent’s identified needs cannot be met by a less restrictive alternative.

Limited Guardian or Conservator Clarifies that limited appointment may be made only if respondent’s needs cannot be met by a less restrictive alternative In establishing a limited guardianship the court shall impose only such legal disabilities and restraints on personal liberty as are necessary to promote and protect the well-being of the individual and shall design the guardianship so as to encourage the development of maximum self- reliance and independence in the individual

Annual Reports – Added Requirements Plans for future care Summary of the guardian’s visits with the ward and activities on ward’s behalf The extent to which the ward has participated in decision making Any changes in the ward’s condition since the last report A summarized plan for the coming year (An ISP, treatment plan, or plan of care may be submitted in lieu of a summarized plan.)

Termination or Modification Adds that the petition from the ward or protectee or on behalf of the ward or protectee may be an informal letter to the court. Anyone who interferes with the transmission of the letter or petition may be cited by the court for contempt after notice and hearing. If at any time the court, on its own motion, has reason to believe that the guardian or conservator’s powers should be increased or decreased or additional rights should be returned to the ward or protectee, the court shall set the matter for a hearing.

Guardian Powers/Requirements A guardian may exercise authority only as necessitated by the adult ward’s limitations To the extent possible, a guardian must encourage an adult ward to participate in decisions, to act on the adult ward’s own behalf, and to develop or regain the capacity to manage the adult ward’s personal affairs.

The Rights of the Ward An adult ward may petition the court to grant the ward the right to: Contract to marry or to petition for dissolution of marriage Make, modify, or terminate other contracts or ratify contracts made by the ward Consent to medical treatments Establish a residence or dwelling place Change domicile Bring or defend any action at law or equity, except an action relating to the guardianship Drive a motor vehicle if the ward can pass the required driving test The appointment of a guardian is not a determination that the ward lacks testamentary capacity The appointment of a guardian revokes the powers of an agent under a previous health care power of attorney unless the court orders otherwise

Rights of the Ward – Very Important New Provision In every guardianship, the ward has the right to: A guardian who acts in the best interests of the ward A guardian who is reasonably accessible to the ward Communicate freely and privately with family, friends, and other persons other than the guardian; except that, such right may be limited by the guardian for good cause as necessary to ensure the ward’s condition, safety, habilitation, or sound therapeutic treatment Individually or through the ward’s representative or legal counsel, bring an action including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by this chapter, including the right to bring an action to modify or terminate the guardianship

Rights of the Ward – Very Important New Provision, continued The least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences Be restored to capacity at the earliest possible time Receive information from the court that describes the ward’s rights, including rights the ward may seek by petitioning the court Participate in any health care decision-making process

Options and alternatives to Guardianship Why is understanding options and alternatives to guardianship important? What do you need to know to make a good decision about the level of support you need? What are some of the options and alternatives to help you make decisions?

Decision Making The right to make decisions is pretty important to all of us. We want everyone to have the protection and support they need – no more, no less. Understanding options and alternatives to guardianship help you to think about and explore this.

Assessing the Need for Protection and Support The first step is to determine what level of ability a person has with regard to key areas of his/her life. One way you can to this is by filling out the “tool” which can be found on the Mo DD Council’s website at www.moddcouncil.org I have also brought copies of this to share with you today. Lets take a moment to talk about the “tool” and how you can use it.

Options and Alternatives to Guardianship Supported Decision-Making Power of Attorney Durable Power of Attorney for Health Care Living Will Limited and/or Joint Bank Accounts Direct Deposit and Automatic Bill Pay Temporary Restraining/Protection Orders

Supported Decision-Making Supported Decision-Making involves working with trusted friends, family members, and professionals to help you understand the situations and choices you face, so you can make your own decisions without the need for a guardian. I have brought materials for you today to help you explore and understand how to use Supported Decision-Making. You can also find and make copies of these documents on the MO DD Council website at www.moddcouncil.org. If you have further questions you can call them toll free at 800-500-7878. Mo just incorporated Supported Decision-Making as an alternative to guardianship in the new law I talked about earlier.

Power of Attorney Power of Attorney – A Power of Attorney is a legal document that lets an individual select or choose another person to act on his/her behalf, as stated in the document. It is recommended that the Power of Attorney include as much detail as possible. Power of Attorney can give authority to act in specific or all legal or financial matters.

Durable Power of Attorney for Health Care A Durable Power of Attorney for Health care is a legally enforceable document in which you select another person to make health care decisions when you cannot do so. You may state in the DPOA both the type of treatment you DO NOT want as well as the treatment you do want to receive. The document can give the person you select the authority to make specific health care decisions or any and all health care decisions.

Living Will A living will or treatment directive is a written declaration directing your doctor to withhold or withdraw death-prolonging procedures should you lack the capacity to make decisions. A living will directs your doctor’s actions only when the use of death- prolonging procedures would serve only to postpone the moment of death, but would not provide a cure for the condition.

Money Management Supports Money management supports help manage your money and avoid financial exploitation. Using these alternatives may help you learn money management skills. Limited or Joint Bank Accounts, Direct Deposit and Automatic Bill Pay Most banks can help you set up these options. You can set dual signature checking, pre-set withdrawal limits and debit cards. You can also set up Direct Deposit and Automatic Bill Pay

Temporary Restraining Order You may fill out a form at your County Court Clerk’s Office to ask a Court to order an individual who is hurting you, or threatening to hurt you, to stay away from you. You are encouraged to identify a person and/or agency that can help you sort through the supports and resources we have talked about. This person can help you understand the decision-making, money management and personal safety alternatives we have discussed.

Options and Alternatives If it is determined by those who know and care about you that the only alternative is guardianship, then limited guardianship should ALWAYS be considered first. With limited guardianship you retain certain legal rights and freedoms that may directly impact your quality of life.