Section 475.075

Title XXXI TRUSTS AND ESTATES OF DECEDENTS AND PERSONS UNDER DISABILITY

Chapter 475

Effective - 28 Aug 1985, 2 histories, see footnote   (history) 

  475.075.  Hearing on capacity or disability — notice — service — contents of petition, appointment of attorney. — 1.  Except as otherwise provided in section 475.062, when a petition for the appointment of a guardian ad litem, guardian or conservator against any person, hereinafter referred to as the respondent, is filed on grounds other than minority, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall promptly set the petition for hearing.

  2.  The respondent shall be served in person with the following:  A copy of the petition; a written notice stating the time and place the proceeding will be heard by the court, the name and address of appointed counsel, and the names and addresses of the witnesses who may be called to testify in support of the petition; and with a copy of the respondent's rights as set forth in subsections 7 and 8 of this section.  The notice shall be signed by the judge or clerk of the court and served in person on the respondent a reasonable time before the date set for the hearing.  The petition shall state the names and addresses of the spouse, parents, children who have reached eighteen, any person serving as his guardian, conservator, limited guardian or limited conservator, any person having power to act in a fiduciary capacity with respect to any of the respondent's financial resources, and any person having his care and custody known to the petitioner.  Each person so listed shall be served with like notice in any manner permitted by section 472.100.  If no such spouse, parent or child is known, notice shall be given to at least one of his closest relatives who has reached eighteen.

  3.  Upon the filing of a petition under the provisions of subsection 1 of this section or for the approval on behalf of the respondent of a transaction pursuant to section 475.092 or for the rendition of emergency medical treatment under the provisions of section 475.123, the court shall immediately appoint an attorney to represent the respondent in the proceeding.  The attorney shall visit his client prior to the hearing.  If the client is capable of understanding the matter in question or of contributing to the advancement of the client's interest, the attorney shall obtain from the client all possible aid.  If the disability of a client compels the attorney to make decisions for the client, the attorney shall consider all circumstances then prevailing and act with care to safeguard and advance the interests of the client.  The court shall allow a reasonable attorney's fee for the services rendered, to be taxed as costs of the proceeding.  The court-appointed attorney may be permitted to withdraw if the respondent employs private counsel who enters an appearance on behalf of said person.

  4.  The court may direct that the respondent be examined by a physician or licensed psychologist or other appropriate professional designated by the court, and may allow a reasonable fee for the services rendered, to be taxed as costs in the proceeding.  The court-appointed physician, licensed psychologist or other professional shall, prior to examination, explain to the respondent in simple language, the following:

  (1)  Incapacity or disability as defined in section 475.010;

  (2)  That the purpose of the examination is to produce evidence which may be used to determine whether the respondent is incapacitated, disabled or partially incapacitated or disabled;

  (3)  That respondent has the right to remain silent;

  (4)  That anything respondent says may be used at the court hearing, and in making the determination of incapacity or disability.

  5.  The court-appointed physician, licensed psychologist or other professional shall submit his report in writing to the court and to counsel for all parties.

  6.  If prima facie proof of partial or complete incapacity or disability is made, a physician or licensed psychologist is competent and may be compelled to testify as to information acquired from the respondent, despite otherwise applicable testimonial privileges.  Evidence received under this subsection which would otherwise be privileged may not be used in any other civil action or criminal proceeding without the consent of the holder of the privilege.

  7.  The petitioner has the burden of proving incapacity, partial incapacity, disability, or partial disability by clear and convincing evidence.

  8.  The respondent shall have the following rights in addition to those elsewhere specified:

  (1)  The right to be represented by an attorney;

  (2)  The right to have a jury trial;

  (3)  The right to present evidence in his behalf;

  (4)  The right to cross-examine witnesses who testify against him;

  (5)  The right to remain silent;

  (6)  The right to have the hearing opened or closed to the public as he elects;

  (7)  The right to a hearing conducted in accordance with the rules of evidence in civil proceedings, except as modified by this chapter;

  (8)  The right to be present at the hearing.

  9.  If the court finds that the respondent possesses capacity to meet his essential requirements for food, clothing, shelter, safety and other care or that he possesses the ability to manage his financial resources, it shall deny the petition.  On the other hand, if the court finds that the capacity of the respondent to receive and evaluate information or to communicate decisions is impaired to such an extent as to render him incapable of meeting some or all of his essential requirements for food, clothing, shelter, safety or other care so that serious physical injury, illness, or disease is likely to occur, or that the ability of the respondent to receive and evaluate information or to communicate decisions is impaired to such an extent so as to render him unable to manage some or all of his financial resources, it shall make and recite in its order detailed findings of fact stating:

  (1)  The extent of his physical and mental incapacity to care for his person;

  (2)  The extent of his physical and mental disability to manage his financial resources;

  (3)  Whether or not he requires placement in a supervised living situation and, if so, the degree of supervision needed;

  (4)  Whether or not his financial resources require supervision and, if so, the nature and extent of supervision needed.

  10.  If the court finds the respondent to be in some degree incapacitated or disabled, or both, the court, in determining the degree of supervision necessary, shall apply the least restrictive environment principle as defined in this chapter and shall not restrict his personal liberty or his freedom to manage his financial resources to any greater extent than is necessary to protect his person and his financial resources.  The court shall consider whether or not the respondent may be fully protected by the rendition of temporary protective services provided by a private or public agency or agencies; or by the appointment of a guardian or conservator ad litem; or by the appointment of a limited guardian or conservator; or, as a last resort, by the appointment of a guardian or conservator.  The limitations imposed upon the authority of the guardian or conservator as set forth in the findings of the court shall be stated in the letters of the guardian or conservator and shall be set forth in the notice of first publication of letters of conservatorship granted.

  11.  If an alleged incapacitated or disabled person has no guardian or conservator and an emergency exists which presents a substantial risk that serious physical harm will occur to his person or irreparable damage will occur to his property because of his failure or inability to provide for his essential human needs or to protect his property, the court may, with notice to such person's attorney, as provided in subsection 3 of this section, and service of notice upon such person as provided in subsection 2 of this section, and, with or without notice to other persons interested in the proceeding, after hearing, appoint a guardian or conservator ad litem for a specified period not to exceed thirty days and for specified purposes.  Orders appointing the guardian or conservator ad litem may be modified upon motion and hearing.  After hearing and a showing of continuing emergency need, orders appointing the guardian or conservator ad litem may be extended from time to time, not to exceed thirty days each.  A guardian or conservator ad litem may be removed at any time and shall make any report the court requires.  Proceedings under this subsection shall not be employed as alternative to proceedings for the involuntary detention and treatment of a mentally ill person under the provisions of chapter 632.

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(RSMo 1939 §§ 447, 449, A.L. 1955 p. 385 § 297, A.L. 1983 S.B. 44 & 45, A.L. 1985 S.B. 35, et al.)

Prior revisions: 1929 §§ 448, 450; 1919 §§ 444, 446; 1909 §§ 474, 476

(1986) Waiver of rights under this section must be affirmative and on the record. In re Link, 713 S.W.2d 487 (Mo. banc).

(1996) A court may not circumvent the right to a jury trial by entering a judgment notwithstanding the verdict against the alleged incompetent.  Matter of Korman, 913 S.W.2d 416 (Mo.App.E.D.).