There can be a myriad of legal problems that confront seniors and their caregivers. SeniorAge recommends that if legal service/advice is needed you should always consult with an attorney about these matters. The following information is intended as a public service and is for information only. It is not intended as legal advice.
Please note: SeniorAge does not provide legal service or assistance. We will refer you to other professionals in the field.
Some of the areas of legal concerns most often asked of Area Agencies include:
In the case of divorced parents, the court may award custody or guardianship of a child to a grandparent in certain circumstances.
- Each parent is unfit, unsuitable, or unable to become a custodian.
- The court must also believe that the grandparent is a suitable custodian and is able to provide an adequate and stable environment for the child
- If the child is placed in foster care, the Children's Division may give preference to relatives of the child.
The court may appoint grandparents as guardians of a minor child. Guardianship ends when the child reaches age 18. A guardian is entitled to custody and control of the minor and shall provide for the education, medical care, support, and maintenance of the child. A court may grant guardianship if:
- The minor is deemed incapacitated.
- The minor has no living parent.
- The parents or surviving parent are unwilling, unable, or unfit to act as guardian.
- The parents or surviving parent had parental rights terminated under the Juvenile Code.
Guardianship and Conservatorship
A guardian is a person appointed by the court to have care and custody of a person (the “ward”) who is unable, because of illness, disability, accident, or advanced age, to care for him or herself. The guardian makes all decisions for the ward.
A conservator is a person appointed by the court to manage the financial resources of a person (the “protectee”) who is unable, because of illness, disability, accident, or advanced age, to manage his or her own financial resources. The conservator may pay bills, receive public benefits, sell and buy real estate and personal possessions, and otherwise control the protectee’s assets.
If a person suffers from only a mild disability or partial incapacity, the court may appoint a “limited” guardian or conservator. This can preserve many of the person’s legal rights.A person retains power over those affairs he or she is capable of managing. The guardian or conservator manages the rest. The use of a living trust and durable power of attorney can help avoid this procedure.
Most of the time, relatives make the best guardians and/or conservators. Because this is a big responsibility, it can be overwhelming for relatives. A public administrator may be appointed by the Missouri Circuit Court, Probate Division, to serve as guardian/conservator when a family member is not available, willing, or suitable. For information contact your county public administrator.
There are several kinds of legal documents that you can prepare ahead of time so that your wishes will be carried out in the manner in which you prefer.
You can appoint another person as your personal custodian to conduct business for you. Under this law, you can transfer some or all of your property, both personal property and real estate, to another person to hold for you as custodian of the property. Title to the property remains with you.
Power of Attorney
If illness or disability confines you to home or a hospital, you may find it difficult to take care of your personal business. One solution to this problem is to create a power of attorney. A power of attorney is created when one person (the “principal”) gives someone else (the “attorney in fact”) written authority to act in the principal’s name. Normally, the attorney in fact is not a lawyer, but rather a friend or relative. A power of attorney is created by a written document stating the names of both the principal and the attorney in fact, along with the specific powers given to the attorney in fact.
The power of attorney may be cancelled or modified by filing a written notice in the office of the Recorder of Deeds in the city or county of the principal’s residence.
Durable Power of Attorney
One problem with the power of attorney is that the principal may give away only the powers he or she actually possesses. If the principal later becomes incompetent to conduct his or her affairs, the power of attorney ends. The Durable Power of Attorney will continue after you become incompetent if:
- The power of attorney is entitled a “durable power of attorney;” or
- The document states that the power is “durable” and includes a provision specifying that the power of attorney will not terminate in case of disability or incapacity; and that
- The document is signed by the principal, dated, and notarized. The durable power of attorney need not be filed with the local Recorder of Deeds to be valid unless real estate transactions are involved. The power of attorney may be cancelled or modified.
Advanced Directives for Health Care
There are three different ways to ensure that your wishes are communicated to your doctor about what kinds of life-prolonging medical procedures or treatments you want should you become incapacitated. These documents also relieve families from having to make difficult decisions at a time of great stress.
Durable Power of Attorney for Health Care
This document allows you to appoint someone to speak for you concerning all of your future health care needs, including the removal of life support systems. You will need to complete a durable power of attorney for health care document.
A “living will” was the first kind of document used to let doctors know whether you wanted life-prolonging medical procedures or treatments. Although these are beneficial, there are other documents available now that specify your wishes in greater detail.
Health Care Choices Directives
Many living wills apply only when you are near death and do not include the withdrawal or withholding of artificial nutrition and hydration. Health care choices directives address these issues and give specific instructions. They also outline specifically what kinds of life-prolonging treatments and medical procedures you want and under what circumstances.
Probate and Estate Planning
If you do not leave a will, your property will be distributed according to Missouri law. A will can help assure that your property (called an estate) transfers to a spouse, children, relatives, or others the way you want. An estate consists of all property and cash assets owned at the time of death, including bank accounts, land, furniture, buildings, cars, stocks and bonds, proceeds of life insurance, and pension plan benefits. A will can ease the tax burdens that may accompany the transfer of an estate and provides the probate court with guidance regarding the distribution of your property and payment of debts. All property will go through the probate court process, even if you have a will, unless you make other arrangements. Some of the ways you can avoid probate include living trusts, joint property, and transfer on death (TOD) designations for assets which will allow them to pass automatically to the beneficiary.