Frequently Asked Questions


1. Why do we have guardians and conservators?

2. If someone has a guardian or conservator do they lose some of their rights?

3. What is the difference between a power of attorney and a guardianship or conservatorship?

4. If I have a power of attorney can I guarantee that there will never be a guardianship or conservatorship proceeding in the Probate Court

5. What happens to the property of a protectee once a conservator is appointed?

6. What is a Public Administrator and what does he or she do?

7. Is the Public Administrator part of the Probate Court?

8. How is a protectee, heir or legatee protected from financial abuse by an administrator?

9. Is a person seeking appointment as an administrator required to have an attorney?

10. Why does my estate have to go through the probate process after I pass away?

11. If I have a Last Will and Testament does my estate have to go to the Probate Court after I pass away?



1. Why do we have guardians and conservators?

The guardian and conservator is a court appointed person (usually a family member or friend) who makes decisions for another person who is not capable of making decisions for themselves.

Sometimes people come to a point in their lives when they are not capable of taking care of themselves or their property. This typically occurs in the following circumstances:

  • When a person is elderly and cannot handle their affairs
  • When a person is born mentally disabled
  • When a person has an accident which leaves them in a debilitating condition
  • When a person is mentally ill and this illness is so severe that they cannot handle their affairs

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2. If someone has a guardian or conservator do they lose some of their rights?

To have a guardian appointed the Probate Court has to make a finding that a person is incapacitated. When the court appoints a conservator the court makes a finding that the person is disabled (incapacitated and disabled are defined in the Missouri statutes). In essence, it means that the ward or protectee is not able to make his or her own decisions. So, in that sense, you can say they lose the right to make these decisions. In reality, the guardian or conservator are the ones exercising those rights. A lot of people find it hard to believe, but a guardian or conservator really does have almost complete authority over the ward or protectee.

Certain rights are in fact lost and cannot even be exercised by a guardian or conservator such as the right to vote and drive.

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3. What is the difference between a power of attorney and a guardianship or conservatorship?

A power of attorney is a document executed by someone giving the authority to someone else to make decisions for the person executing the power of attorney. The power that is given can be as broad or as narrow as the person executing the power of attorney wants it to be.

If a person is not capable of executing a power of attorney (e.g. mentally disabled, dementia, in a coma) then it may be necessary to go to Probate Court and get a guardianship or conservatorship established.

A power of attorney is done in a lawyer's office. The guardianship or conservatorship can only be done in the Probate Court and is done if the person is not capable of executing a power of attorney.

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4. If I have a power of attorney can I guarantee that there will never be a guardianship or conservatorship proceeding in the Probate Court?

Unfortunately, you cannot guarantee that you will never be in court. If someone else (i.e. family member, friend) challenges the power of attorney they can and frequently do file petitions in the Probate Court asking for a guardianship/conservatorship. As a general rule the Probate Court will appoint a guardian/conservator (if there is a need) even when there is a power of attorney.

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5. What happens to the property of a protectee once a conservator is appointed?

A conservator has the obligation to take charge of the property of his/her protectee. Typically, what happens is the conservator is also the guardian, which means that the guardian/conservator also has to decide where he/she is going to place the ward/protectee. Typically, placement is at a nursing home or some other supervised facility. Placement here is usually permanent.

Now, the guardian/conservator has to decide what to do with the tangible personal property (furniture, etc.) and the real estate. Because of lack of space it is not usually possible to put all tangible property at the nursing home. To pay for storage is not prudent because tangible personal property often does not have much value and to pay for storage would not be a prudent use of funds. There is no choice but to sell the furniture, furnishings, etc. To do otherwise would probably be negligent.

The same is true of the real estate. If the ward/protectee will not be living in the home then it usually should be sold. Otherwise, you have to maintain it, insure it and keep it secure. If it is not sold then you have less liquid funds for the care and support of the ward/protectee. In addition, real estate carries with it the potential for liability. Someone injured on your real estate could potentially file a lawsuit for damages.

Regarding intangible property (i.e. bank accounts, stock, etc) these are usually much easier to handle. The conservator collects these assets, maintains them and sells them if needed. You will usually need a checking account for paying expenses. A conservator should consult with his/her attorney on investment options and regarding all aspects of finances.

The bottom line is that ALL ASSETS OF THE WARD/PROTECTEE BELONG TO THE WARD/PROTECTEE and must be used for the care, support and benefit of the ward/protectee. Contrary to popular belief the assets do not belong to the guardian/conservator, to the state or to anyone else.

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6. What is a Public Administrator and what does he or she do?

The Public Administrator is a public official who performs the job of a guardian, conservator or personal representative when there is no one else who can be found or is capable of performing the job.

A Public Administrator has the same responsibility as any other administrator.

Most guardians, conservators and personal representatives that are appointed are family members or friends of the ward/protectee.

The Public Administrator is appointed in the following circumstances:
  • When there is no family or friends of the ward/protectee.
  • There is significant disharmony in the family.
  • When an administrator is appointed and the court removes them for not performing their duties.

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7. Is the Public Administrator part of the Probate Court?

No, the Public Administrator is a St. Louis County Official and is not employed by the Probate Court. As with any other administrator, however, he/she is supervised by and works closely with the Probate Court when acting as an administrator.

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8. How is a protectee, heir or legatee protected from financial abuse by an administrator?

There are three main safeguards:

  1. If there are friends, family or other interested persons around they can monitor what the conservator or personal representative does and they can file petitions or objections with the court if they think that something is wrong.

  2. Once a conservator or personal representative is appointed he/she is required to file an inventory listing the assets he/she is in charge of. These are the assets that he/she is accountable for. Every year the conservator or personal representative is required to file an accounting with the Probate Court. The inventory is the beginning of the accounting and the conservator or personal representative has to show all the income coming in and all the expenditures going out. All expenditures require a court order (exception - not required in some decedent estates). In addition, the Probate Court has an auditing staff that reviews the accountings and makes sure that every thing is accounted for (exception - not audited in some decedent estates).

  3. Before a conservator or personal representative is appointed the Probate Court requires that a bond be filed (exception - in some decedent estates bond is not required). A bond is essentially insurance for the protectee or heirs/legatees. A bond is a document issued by an insurance or surety company wherein the insurance or surety company agrees to put money back into the conservatorship or decedent estate if assets are not properly accounted for by the conservator or the personal representative.

If the Probate Court finds that the conservator or personal representative is doing something wrong, the conservator or personal representative may be removed by the Probate Court. In almost every case of removal of the original conservator or personal representative the Public Administrator is appointed as the successor conservator or personal representative.

The successor conservator or personal representative (whether it is the Public Administrator or an other administrator) has a duty to make sure that the prior administrator is held accountable for the assets in their charge. Frequently, this requires the successor administrator to ask the Probate Court for a money judgment against the prior administrator and his/her bonding company. The judgment is almost always paid by the bonding company (once paid, the bonding company can go after the prior administrator for this money.). The estate is protected by this system.

For a list of judgments obtained by this office please click here.

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9. Is a person seeking appointment as an administrator required to have an attorney?

Yes, Missouri statute and certainly the St. Louis County Probate Court requires it. This is because as an administrator you are not acting for yourself (a person acting on their own behalf can act as their own attorney). You are appointed to act on behalf of someone else.

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10. Why does my estate have to go through the probate process after I pass away?

The reason property gets probated is because the title of that property does not tell us who is to receive it after the owner passes away.

As a general rule if property is titled in a way that tells us who is to receive it after the owner passes away then you do not have to probate it. Otherwise, it has to be probated. (Note: Whether or not you have a Last Will and Testament is not relevant to the question of whether or not you have to probate. See the next question.)

The main function of the probate process after a person passes away is to provide a mechanism for transferring title to property to the heirs or legatees of the deceased person. If the deceased person has a Last Will and Testament then the property goes to those people named in the Last Will and Testament (those people are called legatees). If there is no Last Will and Testament then the property goes to those people that Missouri law requires (those people are called heirs at law). In effect the state legislature has created a Last Will and Testament for every one who does not have one.

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11. If I have a Last Will and Testament does my estate have to go to the Probate Court after I pass away?

The fact that you have or do not have a Last Will and Testament has no impact on whether your estate will have to go to Probate Court or not. The important fact is how your property is titled. If you have a joint owner with right of survivorship or you have a named beneficiary then that property does not need to go through the probate process. If there is no joint owner or beneficiary then the property has to be probated. The Last Will and Testament only directs how property THAT IS IN PROBATE is to be distributed. If the property is not subject to probate the Last Will and Testament has no impact on it.

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