Dealing with Missing Persons
October 2, 2014 § Leave a comment
Several years ago a woman in our district disappeared without a trace, leaving behind some real property on which was situated her residence, some bank accounts, and some other assets, along with the usual bills that accompany those. After some fruitless weeks the focus of the family’s attention shifted from finding her to dealing with her affairs. What could they do?
The answer is in the conservatorship statute, MCA 93-13-251, which states:
If a person is incapable of managing his own estate … because the person is missing or outside the United States and unable to return, the chancery court of the county where the person resides or, in the case of a missing or absent person, the chancery court of the county where the person most recently resided, upon petition of … one or more of his friends or relatives, may appoint a conservator to have charge and management of the property of the person … subject to the direction of the appointing court.
NOTE: We’re not dealing here with military missing or missing in action. That is specifically addressed in MCA 93-13-161.
Since the person is not to be found in Mississippi, an affidavit must be filed that the person is not to be found in the state after diligent inquiry, and process by publication must be made on the missing person pursuant to MRCP 4(c)(4). Thirty days’ process should be given, with notice to a day and time certain. Personal process, waiver, or joinder must also be had on one relative of the proposed ward residing in Mississippi, and MCA 93-13-153 spells out what class of relative will satisfy the requirement.
MCA 93-13-255 provides that the court shall conduct a hearing on the need for a conservator, and may appoint a guardian ad litem (GAL). In my opinion, it would be prudent to appoint a GAL in cases of this sort. The section also requires that the ward be examined by two physicians. That, of course, is problematical where the ward is missing. I think it can be reasonably deduced from the conservatorship statutes that this requirement applies only to proceedings of incapacity of advanced age, and not to missing persons. Since missing persons are specifically mentioned in Section 251, and are not mentioned in Section 255, it is reasonable to assume that there is no such requirement for them.
The conservator in such cases, has the same powers and duties as guardian of a minor (Section 259). The conservator may make provision for support of the ward’s dependents (Section 263).
Appointment of a conservator imposes the same disability on the missing ward as if he or she were a minor (Section 261). If the ward reappears, a petition must be filed to restore the ward’s legal capacity and end the conservatorship (Section 265). That would require a final account, with notice to the ward, all as provided in MCA 93-13-77.