The Better Chancery Practice Blog

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Petition

• Are all necessary parties properly joined?
• Ward – petitions through guardian or next friend.
• Both parents, if living, are essential parties unless the child is placed under legal guardianship of one parent (e.g., by divorce) or of a third party.
• If neither parent is living and no legal guardianship has been established, a guardianship should be established before going forward with the settlement.
• Is there any need to join ancillary 3rd parties such as DHS or Worker’s Compensation Commission?  § 93-13-59, MCA;  Mississippi Bar v. Moyo, 525 So.2d 1289 (Miss. 1988).
• A guardianship is not required for settlements of money or property valued at $25,000 or less, and the $25,000 amount refers to the gross amount and not the amount due the ward after payment of legal fees and expenses.  The court may, in its discretion, require a guardianship in any case, and in this court’s opinion, a guardianship should be required if the gross settlement settlement amount is $10,000 or more.  § 93-13-211, MCA.

Hearing

• The court must conduct a hearing regarding settlement of the ward’s claim, and a witness on the ward’s behalf must be heard.  Union Chevrolet Co. v. Arrington, 138 So.2d 593 (Miss. 1932).
• The hearing must be had on the record.

Approval or Disapproval of Settlement

• The court considers the evidence presented to determine whether the settlement is in the best interest of the child.
• The court may apply terms and conditions for holding the minor’s property during the period of guardianship.

Accounting

• When a guardianship is established, annual accounts of receipts and expenditures are required unless excused by the court.
• A final accounting is necessary at the cessation of the guardianship.  § 93-13-67 through -77, MCA.
• § 93-13-38, MCA, states that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”