In the Estate of Freebairn

DISSENT

ROY L. RICHTER, Judge

I respectfully dissent. The majority relies on In re R.C.H., 419 S.W.3d 158 (Mo. App. E.D. 2013), which cites In re Estate of Juppier, 81 S.W.3d 699 (Mo. App. E.D. 2002). I believe the facts of this case are distinguishable. Both R.C.H. and Juppier involve grandparents wishing to intercede in minors’ guardianships involving their grandchildren. The case before us deals with the child of an adult incapacitated person.

The following statutes apply to this case, wherein the adult child of a ward petitioned the probate court to remove the guardians and appoint Appellant (a child of the ward) as the guardian for her incapacitated mother:

Definitions.

When used in this code, unless otherwise apparent from the context:
(15) “Interested persons” mean heirs, devisees, spouses, creditors or any other having a property right or claim against the estate of a decedent being administered and includes children of a protec-tee who may have a property right or claim against or an interest in the estate of a protectee. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved;

Section 472.010 (emphasis added).1 Absent from this list are the terms ‘incapacitated.’ ‘minor,’ ‘guardian,’ ‘protectee,’ and ‘ward.’.

When referring to a child, only the children of protectees are mentioned in this definition for “interested persons”—the children of incapacitated persons are not mentioned. The ■ “context” provided by Chapter 475 makes it apparent that children of wards should not be treated differently than the children of protectees. It is not .logical to assume, that the child of a disabled person would have greater rights than the child of an incapacitated person.

In Chapter 475, dealing with Guardianship, we find: • .

*560The provisions of chapter 472, unless therein restricted to decedents’ estates, apply to guardianships and conservator-ships. Where sections in chapter 473 are specifically incorporated by reference by any provision of sections 475.010 to 475.370, they shall be applied as if “decedent” or “deceased” read “ward” or “protectee”, “executor” or “administrator” or “personal - representative” read “guardian”, “conservator” and the like, as the case may be, as far as applicable to guardianships and conservator-ships and not inconsistent with the provisions of sections 475.010 to 475.370. In other cases, where no rule is set forth for guardianships and conservatorships in sections 475.010 to, 475.370, the rule regarding decedents’ estates in this law shall likewise apply to guardianships and conservatorships when applicable thereto and not inconsistent with the provisions of sections 475.010 to 475.370, unless a contrary rule of court is duly promulgated or declared; provided that the provisions of sections 473.780 to 473.840, relating to independent administration, shall not apply to guardian-ships or conservatorships.

Section 475.020.

Additionally, Section '475.030: “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.” Section 475.030.

Section 475.050 further outlines the appointment of the incapacitated person’s guardian or disabled person’s conservator:

1. Before appointing any other eligible person as guardian of .an incapacitated person, or conservator of a disabled person, the court shall consider the suitability of "appointing any of the following persons who appear to be willing to serve:
(1) If the incapacitated or disabled person is, at the time of the hearing, able to make and communicate a reasonable choice, any eligible person nominated by the person; ■
(2) Any eligible person nominated in a durable power of attorney executed by the incapacitated or disabled person, or in an instrument in writing signed by the incapacitated or disabled person and by two witnesses who signed at the incapacitated or disabled person’s request, before the inception of the person’s incapacity or disability, at a time within five years before the hearing when the person was able to make and communicate a reasonable choice;
(3) The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person;
(4) Any other eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a duly probated will of such a spouse or relative executed within five years before the hearing.

Section 475.050.1 (emphasis added).

The requirement that the court shall consider appointing the adult child of an incapacitated person would seem to grant standing to such individuals, not only at the time of the initial proceedings, but in any proceeding involving the incapacitated parent.

To file a petition for guardianship of an incapacitated person, Section 475.060 reads, in pertinent part, as follows:

2. Any person may file a petition for the appointment of himself or herself or some other, qualified person as guardian of an incapacitated person. Such petition shall state:
(1) If known, the name, age, domicile, actual place of residence, and post office *561address of the alleged incapacitated person, and for the period of three years before the filing of the petition, the most recent addresses, up to three, at which the alleged incapacitated person lived prior to the most recent address, and if any of these facts is unknown, the efforts made to ascertain that fact. In the case of a petition filed by a public official in his or her official capacity, the information required by this subdivision need only be supplied to the extent it is reasonably available to the petitioner;
(2) The estimated value of the alleged incapacitated person’s real and personal property, and the location and value of any real property owned by the alleged incapacitated person outside of this state;
(3) If the alleged incapacitated person has no domicile or place of residence in this state, the county in which the property or major part thereof of the alleged incapacitated person is located;
(4) The name and address of the parents of the alleged incapacitated person and whether they are living or dead;
(5) The name and address of the spouse, the names, ages, and addresses of all living children of the alleged incapacitated person, the names and addresses of the alleged incapacitated person’s closest known relatives, and .the names and relationship, if known, of any adults living with the alleged incapacitated person; if- no spouse, adult child, or parent is' listed, the names and addresses of the siblings and children of deceased siblings of the alleged incapacitated person; the name and address of any agent appointed by the alleged incapacitated person in any durable power of attorney, and of the presently acting trustees of any trust of which the alleged incapacitated person is the grantor or is a qualified beneficiary or is or was the trustee or co-trustee and the purpose of the power of attorney or trust;
(6) The name and address of the person having custody of the person of the alleged incapacitated person;
(7) The name and address of any guardian of the person or conservator of the estate of the alleged incapacitated person appointed in this pr 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) 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.

Section 475.060 (emphasis added).

Section 475.075 furthermore 'sets forth the procedure once a petition is filed for appointment of a guardian ad litem, guardian or conservator for reasons other than a minority: .

1. Except as otherwise:provided in section 475.062. ‘when a petition for the appointment of á 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.
*5622. 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 4-72.100. 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.

Section 475.075 (emphasis added).

Why would this, section require service on the adult child when guardianship is sought for the parent if such child did not have standing? This section makes no mention of any required financial interest, which seems to be the deciding factor in the . “you have no standing” holding in R.C.H. and Juppier. From the context of Chapter 475,. I would hold that the definitions in Section 472.010 must allow the child of an incapacitated adult to have standing, regardless of any financial or potential property, interest. I call, once again, on the Legislature to clarify this situation as to the children of incapacitated adults.

. Chapter 472 is included in what was known as the general provisions of the "Probate Code.” Section 472.005’. "The procedures herein prescribed sháll govern all proceedings in probate -then-pending, except to the extent that, in the opinion of the court, their application in particular proceedings or parts thereof would not be feasible or would work injustice. ...” Section 472.005.