There are two types of Guardianships: Adult and Minor.
Minor guardianships are for children less than eighteen years of age and are put into place when the parents of the child are unfit, unwilling, or unable to fulfill their duties as parents. This could be where a parent is unstable, is in prison, or, is very ill. A minor guardianship expires when the child turns eighteen years of age. Parents can either consent to the guardianship or can contest the guardianship. In cases where the parent is unavailable due to absence or death, it is necessary to choose an attorney who knows what steps must be taken in order to prevent the guardianship from being overturned down the road.
An adult guardianship is for anyone eighteen years of age and older. The purposes of a guardianship is to put someone into place to make decisions for the adult when they are unable to make decisions for themselves and/or care for themselves on a day to day basis. Examples may include someone who has developed Alzheimer*s, has had a stroke, or, who has been diagnosed with a mental and/or cognitive impairment. It will be necessary to obtain a letter and/or report from a doctor with personal knowledge of the adult which states that a guardianship is necessary for the adult and that there are no other alternatives to protecting the adult.
In some cases, parents of an adult child who may be Autistic, have Down Syndrome, or, another cognitive impairment may seek to obtain guardianship over their adult child in order to protect them. In those cases, it is best to begin the guardianship paperwork prior to the child turning 18 so that there is little to no lapse is parental decision-making authority. Some courts may hold the hearing a few days before the child turns 18 and then wait to enter the order so that there is no expiration and that order is in place upon their 18th birthday to best protect the child.
Steps to start a Guardianship
The steps necessary to obtain a guardianship, whether for an adult or a child, are essentially the same. There are some differences. All courts are required to follow the Probate Code, however, some Courts have additional steps that they require be taken, especially in regards to minor guardianships. It is necessary to choose an attorney who knows all of the steps required of a particular court to avoid any unnecessary delays or potential that the guardianship will not be granted. In all guardianships, an attorney is appointed by the Court for the child or the adult. In minor guardianships, the attorney is called the Guardian ad Litem. In adult guardianships, the attorney is called the Attorney for the Respondent. In both situations, their job is the same. The must conduct an
investigation and make recommendations as to what they believe is in the best interest of their client. If an adult chooses to contest a guardianship, they have the right to hire their own attorney.
Guardianships are not permanent in the sense that they can be revoked. In the case of minor guardianships, a guardianship will be revoked if and when the Court feels that the parent(s) have demonstrated that they are now appropriate to resume caring for their child and if revocation is in the best interest of the minor child. In adult guardianships, a guardianship will be revoked when the Court feels that the adult has demonstrated that they have been fully restored such that they can adequately care for themselves and make appropriate decisions on a day to day basis.
Although Missouri statutes set forth the requirements of how to file for a guardianship, each probate court also has specific procedures and local rules that must be followed. It is important to choose an attorney who is familiar with both state statutes and local rules.
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