1. MO-WINGS
Proposed Guardianship-Conservatorship Legislative Reform – Chapter 475, RSMo

2. Process and Product
Who is proposing change? Why change is proposed? How would Chapter 475 be organized? What terminology has changed? How has appointment process changed? What has changed in guardianship? What has changed in conservatorship? Any changes is restoration/termination

3. Who is Proposing Change
MO-WINGS, based upon Recommendation #5.2 of 3rd National Guardianship Summit, Oct. 2011
Stakeholders include representatives of:
Persons with disabilities, parents, family members, service providers, AARP, NAMI, Alzheimer’s Association, Mo Dev. Disabilities Council, MO Bar Probate and Trust and Elder Law Committees, Public Administrators, social workers, nurses, psychologists, lay guardians, advocacy groups, long-term care ombudsmen, Dept. of Mental Health and Health and Senior Services, Area Agencies on Aging
- With input from judges and national experts
Mo-Wings, Mo’s Working Interdisciplinary Network of Guardianship Stakeholders was created in part based upon Recommendation #5.2 of the Third National Guardianship Summit that encourages states to create a multidisciplinary stakeholders group.

4. Process Chosen First, improve the law
Second, develop policy guidance and best practices
Third, educate, train, evaluate, address need for further changes
Mo-Wings chose to first reorganize and improve Chapter 475, RSMo to incorporate recommendations of the National Guardianship Summits, consider alternatives to guardian/conservator appointment and emphasize person-centered services with the clear understanding that additional work would need to follow to develop policy guidance and best practice and educate, train, evaluate and address need for further changes. MO-WINGS plans to remain actively involved in each phase.

5. Why Change Law Mo’s current law enacted in 1983 – 32 years old
During the past 30 years significant changes have been made to related Mo law – most significantly, the enactment of the MO Uniform Trust Code, the Durable Power of Attorney Law and the Durable Power of Attorney for Health Care Act.
Various alternatives to conservatorship created
Various alternatives to guardianship created
Estate planning is much different
Mo’s current statute has never been comprehensively revised with many provisions dating back to the 1800’s. Since 1983 various alternatives to guardianship and conservatorship have been created; Assistive technology, emphasis on supports to avoid guardianship, Special Needs Trust, Custodianships, Mo Transfer to Minors Law.

6. Why Change Law More persons diagnosed with dementia
Seldom used limited guardians/conservators
Overuse of public administrators
Little guidance for guardians – many rules for conservators, the emphasis was on administering income/assets
Some terminology out of date
Current chapter not well organized
Although Limited Guardianship/Conservatorship is an option currently in the law it is seldom used. Public Administrators were intended to be a last resort but are overused resulting in large caseloads and inadequate staffing to meet the need. Effort has been made to reorganize the statute

7. Why Change Law
Confusion regarding assets if protectee married - “Division of assets” not recognized because it was not in law until Clarification needed as to support of both persons Confusion about estate planning - Joint assets - Non-probate transfers - Coordinating with support trusts

8. Guardianship Summits
3 National Guardianship Summits were designed to develop principles and best practices in guardianship.
The Third Summit issued some 70 recommendations dealing with administration of guardianships and conservatorships. Major themes included:
-Appointment procedures should be tightened
-There should be emphasis on limited guardianship
-Counsel for respondent should be appointed in all cases
-Guardians should receive training
-Ward’s choices and substituted judgment should be emphasized
The Task Force has carefully considered these recommendations in developing its draft.
Every 10 years or so there is a major national conference designed to develop principles and best practices in guardianship. The task force has carefully considered recommendations from these summits in developing our draft. Major themes include; Tightening appointment procedures, emphasizing limited guardianships, appointing counsel for respondents in all cases, training for guardians and emphasizing the ward’s choices and substituted judgment. Gaps in current Chapter 475 were identified particularly – no rights of ward , “best interests” rather than substituted judgment, little person-centered planning required and most emphasis on managing money and property.

9. Structural/Organizational Changes
The revised draft statute reflects organizational changes that improve readability. The structure of the revised statute is drastically simplified.
Emergency Appointment of Guardian and/or Conservator clarified and set out in separate section
Provisions clarified as to estate planning, marital property, “division of assets” for Medicaid applications, restoration of ward or protectee.
Revised draft reflects organizational changes to improve readability, the structure is drastically simplified with provisions clarified as to estate planning, marital property, “division of assets” for Medicaid applications, and restoration of ward or protectee.

10. Definitional Changes
The revised draft is gender neutral and includes appropriate, modernized language.
The definition of “incapacitated person” has been updated to reflect the understanding that individuals with developmental disabilities are capable of communicating decisions when supported to do so.
“Disabled person” has been replaced by “financially incapacitated person.”
These definitional changes reflect societal changes and also modern understandings of developmental disabilities and important advancements in assistive technology
The definition of “incapacitated person” has been updated to reflect the understanding that individuals with developmental disabilities are capable of communicating decision when supported to do so. These changes reflect societal changes and also modern understanding of developmental disabilities and advancements in assistive technology. The fact that an individual has a disability does not mean they automatically need a guardian or conservator. Those decisions are based on capacity or incapacity.

11. Appointment and Procedural Changes
The revised draft makes more explicit that the appointment of a guardian or conservator should be a last resort. This is achieved by the requirement that the court consider whether the respondent will be fully protected by a lesser-restrictive alternative to guardianship.
It is further modernized by the requirement that the court consider appropriate services and assistive technology when determining whether the appointment of a guardian or conservator is appropriate.
These requirements better ensure that the respondent’s personal liberty and freedom are restricted only to the extent necessary
Important changes have been made to the appointment process. It is more explicit that the appointment of a guardian or conservator should be a last resort. There is a requirement that the court consider whether the respondent will be fully protected by a lesser-restrictive alternative to guardianship. The requirement that the court consider appropriate services and assistive technology when determining the appropriateness of appointment of a guardian or conservator is an important change. This better ensures the respondent’s personal liberty and freedom are restricted only to the extent necessary

12. Appointment and Procedural Changes
In revised draft the Petition must now allege factual basis for the petitioner’s conclusion and must recite reason, incidents, and specific behaviors demonstrating why the appointment of a guardian is sought.
Respondent’s attorney duties clarified
- Respondent’s attorney to be advocate not Guardian Ad Litem
- Attorney to meet respondent 7 days before hearing
The Petition must now allege a factual basis for the petition and must recite reason, incidents and specific behaviors demonstrating why the appointment of a guardian is sought. The respondent’s attorney to be advocate and represent the respondent. Attorney now required to meet respondent at least 7 days before hearing.

13. Appointment and Procedural Changes
Respondent’s Hearing Rights – the attorney must advise respondent of respondent’s legal rights. Respondent must be advised of right to appeal court’s decision.
Court denial of petition – provision revised to emphasize alternatives and that detailed findings must be made in order of appointment
Order appointing guardian or conservator- provision revised to emphasize that appointment of guardian or conservator is a last resort
The respondent must be advised of their legal rights and of their right to appeal the court’s decision. The order appointing a guardian or conservator has been revised to emphasize that the appointment of a guardian or conservator is a last resort.

14. Appointment and Procedural changes
The principle that a ward should maintain as much autonomy as possible is furthered by mandatory addition to the court’s order granting complete or limited guardianship. The revised draft requires more detailed findings of fact and whether the respondent retains the right to vote.
The inclusion of these particularized findings requires more precision from the court in it’s articulation of each respondent’s needs and acknowledges that generalized orders have a tendency to unduly restrict the ward’s autonomy
In the court’s order granting complete or limited guardianship more detailed findings of fact are required as well as whether the respondent retains the right to vote. The inclusion of these findings requires more precision from the court in it’s articulation of each respondent’s needs and acknowledges that generalized orders have a tendency to unduly restrict the ward’s autonomy

15. Changes to Administration of Guardianship
A significant change in the administration of the guardianship is the requirement that the guardian consult with the ward to ascertain the ward’s preferences, goals and needs and otherwise attempt to make the decision the ward would have made, if feasible.
In contrast to the “best interest” framework that previously governed, the new standard requires the guardian to first ask the ward his or her preferences.
The guardian shall exercise authority only as necessitated by the ward’s limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs.
A significant change in the administration of the guardianship is the requirement that the guardian consult with the ward to ascertain the ward’s preferences, goals and needs and will attempt to make the decision the ward would have made, if feasible. The new standard requires the guardian to first ask the ward his or his preferences. The guardian shall exercise authority only as necessitated by the ward’s limitations, and to the extent possible, shall encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs.

16. Changes to Administration of Guardianship
The new draft standard promotes autonomy by encouraging the ward’s participation in decision-making in all practicable circumstances.
The annual reporting requirements are also modernized, including an initial “report” by 90 days of appointment that outlines the plan for the ward and the annual report. The addition of these requirements encourages the guardian to become and remain acquainted with the ward and their changing needs and preferences.
The ward’s participation in decision-making is encouraged in all practicable circumstances. An initial “report” that outlines the plan for the ward is added in addition to the detailed annual report. This encourages the guardian to become and remain acquainted with the ward and their changing needs and preferences.

17. Rights of the Ward
The draft clarifies the rights and privileges that are retained by the ward upon appointment of a guardian. A new provision clearly and concisely enumerates the ward’s rights.
A guardian who acts in the best interests of the ward
A guardian who is reasonably accessible to the ward
A new provision clearly and concisely enumerates the ward’s rights. These rights include the ward’s right to a guardian who acts in the ward’s best interest and is reasonably accessible to the ward.

18. Rights of 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 but only 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 relating to the guardianship, 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 pursuant to the provisions of section
Wards have the right to communicate freely and privately with family, friends and other persons, except that such right may be limited by the guardian for good cause. The ward has the right to bring an action relating to the guardianship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege including the right to bring an action to modify or terminate the guardianship.

19. Rights of the Ward
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
Wards have the right to the least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs and preferences. They have the right to be restored to capacity at the earliest possible time and to receive information from the court that describes their rights, including rights they may seek by petitioning the court.

20. Rights Ward May Petition For
Contract to marriage or petition for dissolution of marriage
Make modify or terminate other contracts made by ward
Consent to medical treatment
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
Rights Ward may seek by Petitioning the Court include; contract to marriage or petition for dissolution of marriage, make, modify or terminate other contracts made by the ward, consent to medical treatment, establish a residence or dwelling place, change domicile, bring or defend any action at law or equity, except an action relating to the guardianship and drive a motor vehicle if the ward can pass the required driving test

21. Changes in Conservatorship
Standard for conservator financial decisions
- Maximize dignity, autonomy, self-determination
- Consider protectee’s needs and preferences
- Before weighing costs and benefits to estate
Delegation permitted
Estate plans to be accommodated if possible
Gifting permitted
- Per previously established patterns
- For division of assets purposes
Coordination of marital assets clarified
Standard for conservator financial decisions included, delegation permitted, estate plans to be accommodated, gifting permitted and coordination of marital assets clarified

22. Procedure for Appointment
Link hearing requirement clarified
Attorney to meet with respondent at least 7 days before the hearing
Respondent’s attorney to be advocate for respondent and not be guardian ad litem
Physician, psychologist, or other appropriate professional with experience or training in the impairment may support petition
Procedure for Appointment; link hearing requirement is clarified, attorney is required to meet with the respondent at least 7 days before the hearing, the respondent’s attorney is to be an advocate for the respondent and not be guardian ad litem, and a physician, psychologist or other appropriate profession with experience or training in the impairment may now support the petition

23. Procedure for Appointment
Alternatives to guardianship or conservatorship set out to be considered by court
Agent under durable power of attorney
Trustee of assets in trust
Representative payee appointed for income
Protective or support services
Ad litem temporary appointment
Limited guardian or conservator
Use of appropriate services or assistive technology
Alternatives to guardianship or conservatorship are set out to be considered by the court; Agent under durable power of attorney, Trustee of assets in trust, Representative payee, Protective or support services, Ad litem temporary appointment, Limited guardian or conservator, Use of appropriate services or assistive technology

24. Restoration and Termination Changes
Petition to increase or decrease guardian/conservator powers Termination of Guardianship/Conservatorship - Death, restoration, disappearance Restoration – full or partial - Easy if guardian and ward agree, no court hearing - Hearing necessary if guardian disagrees Streamlined Processes if ward/protectee dies
Petition to increase or decrease guardian/conservator powers, termination of guardianship/conservatorship upon death, restoration or disappearance. Restoration, full or partial is addressed. If guardian and ward agree no court hearing required. Streamlined processes if ward/protectee dies.

25. Next Steps Dissemination of discussion draft
- posting on website,
- ing upon request
- presenting, to request a presentation in your area contact
A Mo-Wings website established, Website will include discussion draft, calendar of presentations, Mo-Wings member list and instructions for providing comment
Public presentations to interested groups and organizations will occur from June to October 2015 to receive comment and solicit support endorsements
Comments will be reviewed and considered by Mo-Wings members
Meet in November 2015 to finalize draft for Introduction in the 2016 legislative session
Latest Master draft Chapter 475 RSMo will be widely circulated thru websites and list serves, a MO-WINGS website is operational, public presentations to interested groups and organizations will occur from June to October 2015, Comments will be reviewed and considered by Mo-Wings members, Draft will be finalized for Introduction in the 2016 legislative session

26. Legislative Process Secure Senate and House Sponsors and Co-Sponsors
Prefile legislation December 2015
Seek support of groups and organizations
Explain Draft Legislation
Work through opposition
Amend as necessary
Pass in 2016 Legislative Session

27. Questions and Feedback
Can you support?
If so how? If not, why not?
Please visit our website, for information, to provide comment or to request a presentation.
Thank-you!