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

Full Question:

How do I gain legal guardianship of my nephew who is living with my family until he finishes school?
11/19/2007   |   Category: Guardianship   |   State: Missouri   |   #12529

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.

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