How do I gain legal guardianship of my nephew who is living with my family?

11/19/2007 - Guardianship - State: MO #12529

Full Question:

How do I gain legal guardianship of my nephew who is living with my family until he finishes school?

Answer:

The following are Missouri statutes:

475.024. Temporary delegation of powers by parent — exceptions. —
A parent of a minor, by a properly executed power of attorney, may delegate to another individual, for a period not exceeding one year, any of his or her powers regarding care or custody of the minor child, except his or her power to consent to marriage or adoption of the minor child.
475.030. Letters of guardianship and conservatorship issued, when. —
1. Letters of guardianship of the person may be granted for any person adjudged incapacitated. Letters of conservatorship of the estate may be granted for any person adjudged to be disabled.
2. Letters of conservatorship of the estate of a minor shall be granted for that part of the estate of the minor which is not derived from a living parent who is acting as natural guardian.
3. Letters of conservatorship for the entire estate of a minor may be granted in the following cases:
(1) Where the minor has no parent living; or
(2) Where there is a natural guardian of the minor and where the court finds that the best interests of the minor require letters of conservatorship for all of his estate.
4. Letters of guardianship of the person of a minor may be granted in the following cases:
(1) Where a minor has no parent living;
(2) Where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship;
(3) Where the parents or the sole surviving parent have had their parental rights terminated under chapter 211, RSMo.
475.045. Who may be appointed guardian of minor. —
1. Except in cases where they fail or refuse to give required security or are adjudged unfit for the duties of guardianship or conservatorship, or waive their rights to be appointed, the following persons, if otherwise qualified, shall be appointed as guardians or conservators of minors:
(1) The parent or parents of the minor, except as provided in section 475.030;
(2) If any minor over the age of fourteen years has no qualified parent living, a person nominated by the minor, unless the court finds appointment contrary to the best interests of the minor;
(3) Where both parents of a minor are dead, any person appointed by the will of the last surviving parent, who has not been adjudged unfit or incompetent for the duties of guardian or conservator.
2. Unfitness of any of the persons mentioned in subsection 1 for the duties of guardianship or conservatorship may be adjudged by the court after due notice and hearing.
3. If no appointment is made under subsection 1, the court shall appoint as guardian or conservator of a minor the most suitable person who is willing to serve.
475.055. Qualifications of guardians or conservators. —
1. Except as herein otherwise provided:
(1) Any adult person may be appointed guardian of the person or conservator of the estate, or both, of a minor or incapacitated or disabled person, except that a parent shall not be denied appointment as guardian of the person of a minor for the reason that the parent is a minor;
(2) Any charitable organization organized and incorporated as a not-for-profit corporation under the laws of this state prior to January 1, 1902, shall be qualified to continue to serve as guardian of the person of any ward for whom such charitable organization has been appointed guardian of the person prior to September 28, 1983, or to be appointed guardian of the person or persons adjudicated incapacitated subsequent to September 28, 1983;
(3) Any social service agency located within a county of the first classification or within a city not within a county except any county of the first classification without a charter form of government with a population of one hundred thousand or more inhabitants which contains all or part of a city with a population of three hundred fifty thousand or more inhabitants, which is found capable by the court of providing an active and suitable program of guardianship for the incapacitated person, taking into consideration the nature of such person's disability and the nature of such organization's services, may be appointed as guardian of the person; however, no social service agency shall be appointed as guardian of the person under this subdivision unless it employs a licensed professional found by the court to have sufficient expertise to meet the needs of the ward, and it is found by the court that such professional shall have primary responsibility for providing guardianship services to the incapacitated person for which such social service agency is appointed guardian. The court shall not appoint as guardian of the person under this subdivision a social service agency which is providing residential services to the ward;
(4) Any corporation authorized to do business in this state and empowered by its charter so to act or any national banking association authorized so to act in this state may be appointed conservator of the estate of a minor or disabled person. No corporation other than a social service agency may be appointed to serve as guardian of the incapacitated person.
2. No person or corporation, other than the public administrator of the county, shall be appointed guardian or conservator unless the appointee has filed a consent to act. Except as otherwise provided by this section, no person or corporation licensed as a facility by the Missouri department of mental health or the Missouri department of social services, nor any administrator, owner, operator, manager or employee of such a facility shall be appointed guardian of the person or conservator of the estate of any resident of that facility, unless related within the fourth degree of consanguinity or affinity to the resident. No full-time judge of any court of this state and no clerk, deputy clerk or division clerk shall be appointed as guardian of the person or conservator of the estate, but a judge, clerk, deputy clerk or division clerk may serve as a guardian or conservator for a ward or protectee who is a spouse or is within the third degree of relationship by consanguinity or affinity as calculated according to civil law. No natural person under eighteen years of age, other than as provided in subsection 1 of this section, no incapacitated or disabled person, and no habitual drunkard shall be appointed guardian of the person or conservator of the estate. No person whose letters of guardianship or conservatorship are revoked shall be appointed guardian or conservator within two years after the revocation. No one shall be appointed guardian of the person or conservator of the estate unless qualified to perform the duties of said office or offices.
3. A person becomes a guardian or conservator of a minor or incapacitated or disabled person upon issuance of letters of guardianship or conservatorship by the court. A person so appointed need not reside within this state in order to accept or serve as guardian or conservator, unless the court finds that such person, taking into consideration his place of residence, is unable to effectively perform the duties of guardian or conservator as provided by this code. The guardianship or conservatorship status continues until terminated, without regard to the location from time to time, whether within or outside of this state, of the guardian and ward or conservator and protectee.
4. Subsections 3 and 4 of section 473.117, RSMo, section 473.689, RSMo, and section 475.338 are applicable to nonresident guardians and conservators.
5. If a social service agency is appointed to act as guardian under this section, any other eligible person listed in subdivision (3) of subsection 1 of section 475.050 may petition the court to have the social service agency removed as guardian. The court shall grant the petition if it finds that the petitioner is qualified and will act in the best interests of the disabled or incapacitated person. The removal of a social service agency under such circumstances does not require evidence that the agency committed acts of misfeasance warranting the agency's removal pursuant to section 475.110.
6. A social service agency acting as a guardian pursuant to subdivision (4) of subsection 1 of this section may only authorize the withholding or withdrawal of artificially provided nutrition or hydration as prescribed under section 404.820, RSMo.
475.060. Application for guardianship — petition for guardianship may be limited to school registration or insurance coverage. —
Any person may file a petition for the appointment of himself or some other qualified person as guardian of a minor or guardian of an incapacitated person. Such petition shall state:
(1) The name, age, domicile, actual place of residence and post office address of the minor or incapacitated person if known and if any of these facts is unknown, the efforts made to ascertain that fact;
(2) The estimated value of his real and personal property;
(3) If the minor or incapacitated person has no domicile or place of residence in this state, the county in which the property or major part thereof of the minor or incapacitated person is located;
(4) The name and address of the parents of the minor or incapacitated person and whether they are living or dead;
(5) The name and address of the spouse, and the names, ages and addresses of all living children of the minor or incapacitated person;
(6) The name and address of the person having custody of the person of the minor or incapacitated person;
(7) The name and address of any guardian of the person or conservator of the estate of the minor or incapacitated person appointed in this or any other state;
(8) If appointment is sought for a natural person, other than the public administrator, the names and addresses of wards and disabled persons for whom such person is already guardian or conservator;
(9) In the case of an incapacitated person, the fact that the person for whom guardianship is sought is unable by reason of some specified physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur;
(10) The reasons why the appointment of a guardian is sought;
(11) A petition for the appointment of a guardian of a minor may be filed for the sole and specific purpose of school registration or medical insurance coverage. Such a petition shall clearly set out this limited request and shall not be combined with a petition for conservatorship.
475.061. Application for conservatorship — may combine with petition for guardian of person. —
1. Any person may file a petition in the probate division of the circuit court of the county of proper venue for the appointment of himself or some other qualified person as conservator of the estate of a minor or disabled person. The petition shall contain the same allegations as are set forth in subdivisions (1), (8), and (10) of section 475.060 with respect to the appointment of a guardian for an incapacitated person and, in addition thereto, an allegation that the respondent is unable by reason of some specific physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the respondent lacks ability to manage his financial resources or that the respondent is under the age of eighteen years.
2. A petition for appointment of a conservator or limited conservator of the estate may be combined with a petition for appointment of a guardian or limited guardian of the person. In such a combined petition allegations need not be repeated.
475.070. Notice of petition for appointment of guardian or conservator for a minor — service on parents of minor not required, when. —
1. Before appointing a guardian or conservator for a minor, notice of the petition therefor shall be served upon the following unless they have signed such petition or have waived notice thereof:
(1) The minor, if over fourteen years of age;
(2) The parents of the minor;
(3) The spouse of the minor;
(4) If directed by the court:
(a) Any person who has been appointed guardian or any person having care and custody of the minor;
(b) Any department, bureau or agency of the United States or of this state or any political subdivision thereof, which makes or awards compensation, pension, insurance or other allowance for the benefit of the ward's estate;
(c) Any department, bureau or agency of this state or any political subdivision thereof or any charitable organization of this state, which may be charged with the supervision, control or custody of the minor.
2. If the minor is over fourteen years of age, there shall be personal service upon him if personal service can be had. Service on others may be had in accordance with section 472.100, RSMo.
3. If a petition for the appointment of a guardian of a minor is filed for the sole and specific purpose of school registration or medical insurance coverage, upon the filing of an affidavit by the petitioner stating that, after due and diligent effort to the best of his or her ability, the whereabouts or identity of either or both parents of the minor remains unknown, the court may proceed with the appointment of such a guardian without having obtained service upon the parents of the minor.


For more information, please see the following links:

http://lawdigest.uslegal.com/estate-planning/guardianships-and-conservatorships/7236/ http://lawdigest.uslegal.com/family-laws/guardianship/7345/

11/19/2007 - Category: Guardianship - State: MO #12529

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