July 28, 2015, Springfield (MO) News-Leader:
Proposed changes to Missouri’s guardianship law would give some wards a stronger voice in their affairs, according to members of the task force who drafted a revision to the current law.
The Mo-Wings task force (Missouri’s Working Interdisciplinary Network of Guardianship Stakeholders) began considering changes to the current law four years ago. Their 108-page draft revision can viewed and commented on through October by visiting MO-WINGS.org. The website also gives a calendar of scheduled Mo-Wings presentations throughout Missouri.
The proposed changes to the law are aimed at better protecting Missouri’s 30,000 wards deemed incapable to make decisions for themselves and another 23,000 minors whose parents were found unable to make choices for them.
The News-Leader ran a story about the MO-WINGS draft revision earlier this month. At that time, efforts to contact task force co-chairs Delores Sparks and Reginald Turnbull were unsuccessful. Since then, both Sparks and Turnbull have reached out to the News-Leader with their insights into the proposed changes to the law.
Missouri guardianship law could change, public can comment through October
“I think some of the most important changes are those that really protect the rights of the individual,” said Sparks, who is also a member of the Missouri Developmental Disabilities Council. “For instance, some of the new recommendation are that the potential ward or protectee now must receive notice of a hearing.”
A “ward” has a guardian to assure that his person is taken care of, while a “protectee” has a conservator to manage property and income.
Members of the task force have heard stories from wards and protectees who say they were not notified of hearings or only learned of the hearing a few hours before it began, Sparks said.
They’ve also heard stories about wards and protectees who met their attorney in the courthouse halls, minutes before a hearing began. The task force is recommending the law be changed to require attorneys and potential wards to meet at least a week before the hearing, she said.
“We are really trying to ensure the individual has the opportunity to meet their attorney who will present their side, so (the attorney) really knows the individual and has factual information about the individual and their capacity or their lack of capacity,” Sparks said.
Wards would also be informed of their right to appeal a judge’s decision, Sparks said.
Christopher Cross, advocate and court-appointed guardian in Springfield, expressed concerns about portions of the revision that might take away Cross’ ability to protect his ward.
“I have a high-risk forensic client with severe disabilities, behavior disorders and an extensive criminal history,” Cross said. “With his history, if the legislation existed it would create a situation where I would not have the ability to help him in effective ways.”
Turnbull, Mo-Wings task force member and an attorney with the National Academy of Elder Law, disagreed.
“What we are trying to do is to have the guardian consider the person’s wishes and preference when making a decision. This is what I call a combination of “best interest” plus “substituted judgment” (i.e., a consideration of what the ward wants). Of course the bottom line is that the guardian is in charge and obligated to do what is safe and best for the ward,” Turnbull said in an email. “Sometimes under current law, guardians did not think that they should even consider the ward’s expressed preferences.”
Turnbull offered these following highlights from the draft revision:
• The term “financially incapacitated” would replace the term “disabled” for the person adjudicated to need a conservator to take care of the protectee’s income and property.
• “Least restrictive alternative” is used rather than “least restrictive environment” to cover issues not just of place but care and providing for essentials for the ward.
• Emphasis on “substituted judgment” (a consideration of what the ward wants) being combined with “best interest” to encourage wards to participate in their decision-making when they can.
• Person-centered planning would be required in taking care of the ward just as a conservator is required to have an investment plan for investing the protectee’s property.
• Conservator would be required to use funds to maximize the protectee’s, dignity, autonomy, and self-determination.
• Marital assets would be better coordinated when one is incapacitated.
• Termination of guardianship/conservatorship or restoration of capacity processes would be clarified.
According to the website, Missouri’s present guardianship law went into effect 32 years ago. The number of adult guardianship cases supervised by probate courts has increased by nearly 30 percent over the past decade, the website says. That number is expected to increase as baby boomers and people with disabilities live longer with increased risk of developing Alzheimer’s or other dementias.
Representatives with MO-WINGS are working with The Arc of the Ozarks to schedule a presentation event in Springfield. The date will be announced in the coming weeks.
The MO-WINGS task force will review comments from the public in November and consider what, if any, changes should be made to their draft revision. Once the draft revision is complete, the task force will seek House and Senate sponsors to introduce it into the legislative process.