MO court: those subject to guardianship have RTC to undo it

In Missouri, a woman subject to guardianship was trying to terminate the guardianship and Missouri Protection and Advocacy Services (P&A) agreed to represent her in seeking to do so.  The woman’s guardian filed a motion to disqualify the P&A’s representation on the grounds that the P&A wasn’t “hired” by the woman and was not appointed by the court.  In response, the court appointed a different lawyer to represent the woman as a best interests attorney (i.e. doing what the attorney thought was right, not what the woman wanted).  The trial court then dismissed the petition for removal of the guardian filed by the P&A and disqualified the P&A, finding that the woman was “totally incapacitated and totally disabled” and therefore was incapable of hiring private counsel like the P&A, as per a case called Schieber v. Schieber, 298 S.W.3d 130 (Mo. App. W.D. 2009).  The trial court also said that the appointed best interests attorney had to determine whether filing a motion to disqualify was in her interest and if not to let the court know that.

The NCCRC gave input on an amicus brief that we joined along with the Center for Public Representation, National Disability Rights Network, American, Civil Liberties Union, American Civil Liberties Union of Missouri, Autistic Self, Advocacy Network, Bazelon Center for Mental Health Law, National Association of Councils on Developmental Disabilities, Disability Rights Education & Defense Fund, and CommunicationFIRST.  The amicus brief argued that not only was the trial court misunderstanding Schieber since having volunteer counsel is not the same as having “hired” counsel, but also that she retained the ability to hire an attorney.  We also argued that denying her the right to counsel of choice was a due process violation.  Finally, we argued that if her counsel of choice could not represent her, the appointed attorney should at least serve a client-directed role, not a best interests role.  The appellant also argued that the directives given to the appointed attorney by the trial court violated the attorney’s right to determine the best strategy.  I also participated in the moot prep with appellant’s counsel along with a number of other people.

In January 2025,, the Missouri Court of Appeals reversed, finding that Schieber was based on the question of an incapacitated person’s ability to contract, whereas if attorneys are serving pro bono there is no “contract” and therefore no problem with the representation.  It would’ve been nice if they found she had the capacity to contract, but of course they didn’t need to reach that issue to rule, so they didn’t.  And a victory is a victory!  The opinion is attached.