In Re Estate of Posey v. Bergin, 299 S.W.3d 6 (Mo. App. E.D. 2009)

Factual Background:

In 2007, appellant Jack Posey initially filed a Motion to Compel Visitation and Communication Privileges and/or for Removal of Guardian and later, after obtaining testimony from Mr. Posey’s treating physician, filed a Petition to Restore Ward/Protectee and to Terminate Guardianship/Conservatorship.

Respondent Julia Posey Bergin, appellant’s daughter, had been guardian and conservator of Mr. Posey since April 2003 as a result of the effects of Mr. Posey’s alcoholism on his physical and mental condition.  Mr. Posey has lived in an assisted living care facility for the duration of his guardianship, and he has refrained from alcohol during the guardianship, as well.  As a result of his sobriety, his physical and mental condition has improved greatly in the time since the guardianship was put in place.

As guardian, Mrs. Bergin placed restrictions on Mr. Posey’s visitation and communication privileges.  She restricted his phone calls, mail, and visitors to limit his contact with two particular individuals, his sister and a friend, who she believed were detrimental to his recovery and wellbeing.  Testimony was presented in the trial court from Mr. Posey’s care facility staff and doctors that they believed the restrictions were no longer necessary and that Mr. Posey’s cognitive and physical state had greatly improved in the time since the guardian was appointed; however, they did not know how he would function outside of a care facility and posited that he may return to drinking if not under supervision.


The Circuit Court of Montgomery County denied Mr. Posey’s Motion to Compel Visitation and Communication Privileges and/or for Removal of Guardian, stating that the court did not have the authority to monitor the day-to-day actions of a guardian, and that Mrs. Bergin was discharging her duties and responsibilities while acting within Mr. Posey’s best interests.   The Court also denied Mr. Posey’s Petition to Restore Ward/Protectee and to Terminate Guardianship/Conservatorship, finding that Mr Posey did not have the capacity to meet his essential requirements and that Mr. Posey was in the least restrictive environment.  The Court also held that Mr. Posey did not have the right to vote.  Mr. Posey appealed.

On Appeal:

Affirmed.  A court has a duty to supervise a guardian’s activities to ensure that the guardian is property discharging her responsibilities, but it should give due consideration to a guardian’s discretion and avoid reviewing day-to-day decisions of the guardian.  Evidence that a ward has regained significant cognitive ability is not enough to restore capacity where there are concerns as to whether the ward could meet his essential requirements without supervision.  A guardian is allowed to place restrictions on a ward if they are necessary to prevent injury to the ward or others, and a guardian will not be removed so long as she is discharging her duties in the best interest of the ward.  Finally, a person adjudicated incapacitated cannot vote.


Section 475.082 RSMo. requires:

“At least annually, the court shall inquire into the status of every ward and protectee under its jurisdiction for the purpose of determining whether the incapacity or disability may have ceased and to insure that the guardian or conservator is discharging his responsibilities and duties in accordance with this chapter.”

This section does not give the court the authority or responsibility to review a guardian’s day-to-day decisions, acting almost as a co-guardian; the court is only to supervise the guardian’s activities, giving consideration to the guardian’s exercise of discretion.  In accordance with Section 475.082, a court should limit its review of the guardian’s activities to whether the guardian is discharging her duties in accordance with the law and acting in the ward’s best interests.

Guardianship can only be terminated when an incapacitated person has been restored to capacity.  This means that the incapacitated person must establish by a preponderance of the evidence that he has the capacity to meet his essential requirements for food, clothing, shelter, and safety.  Even where evidence is presented that a ward has significant cognitive ability, the court can deny restoration of capacity where there is concern as to whether the ward can meet his essential requirements because it is a preponderance of the evidence standard.

A guardian has powers and duties, which require her to act in the best interest of the ward.  A guardian must provide for a ward’s care in “the best and least restrictive setting reasonably available.”  A guardian will be removed only if she is not meeting these standards of responsibility and care.  Therefore, the guardian can place restrictions on the ward, as long as she is acting in the ward’s best interest and they are the least restrictive conditions necessary for his wellbeing.

Article 8, Section 2 of the Missouri Constitution and 115.133.2 RSMo. provide that no incapacitated person can vote.  Neither provision provides any exception to this rule.  Though it is possible for an incapacitated person to be incompetent for some purposes and not others, such as writing a will, there is no such exception provided in the provisions or in any case law regarding the ability to vote.