Moving the Ward
October 17, 2017 § 3 Comments
The guardian whom you represent drops by to pay on her bill and nonchalantly reports that “We had to move momma to a rest home over in Lisman, Alabama. We think she’ll be happier there.” After she departs, you begin musing whether something should have been filed in court.
Well, you would do well to study MCA 93-13-63. It reads, in its entirety:
If a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect; but the guardian shall first give a bond, with two sufficient sureties residing in this state, in the full value of the ward’s personal estate, conditioned that he will qualify as guardian of the ward in the state or country to which he intends removing, and will there present and file in the proper court a complete inventory of his ward’s property and effects; and, on failure to comply with the condition, the bond may be put in suit for the benefit of the ward.
My, that’s a lot to do. First, a petition must be filed seeking authority. Second an accounting must be filed. Third, the guardian must post bond with two Mississippi sureties in the value of the ward’s estate conditioned on his qualification as guardian in the state to which the ward is to be moved, and on condition that he will file a complete inventory of the ward’s property and effects in that court. And, on failure to comply, the bond “may be put in suit” for benefit of the ward.
So, yes, there are plenty of procedural hoops through which you and the ward must cavort in order to achieve your aim. I’m not aware of a case on point, but I would think that failure of the guardian to comply with the statute might well put her original bond in jeopardy. And if she entered into a contract with the Alabama facility without approval of the court, the court could assess the expense against her. Who was providing the guardian with legal advice while all of this was happening?
Change the scenario above to a movement of the ward from Quitman, in Clarke County, to Brandon, in Rankin County, without prior court approval. Any problem with that?
MCA 93-13-61 tells what is supposed to be done:
If a guardian desire to remove the person and/or personal property of his ward to any county other than that in which he was appointed guardian, he may, on petition, be allowed to do so, if the court deem it proper, and it may make an order to that effect, on condition that the guardian will qualify in the county to which he removes, or it may allow the removal and retain jurisdiction over the guardianship. The court of the county to which he removes, on production of the order authorizing the removal, may appoint him guardian. And when he shall produce to the court which originally appointed him the letters of guardianship from the court of the county to which he has removed, and make a settlement of his guardianship accounts, he may be discharged from his original bond; and thereafter he shall present his inventories and accounts to and be under the control of the court of the county to which he has removed. And the clerk of the court in which the settlement was made shall transmit a certified copy of the settlement, at the cost of the guardian, to the clerk of the court in which he was last appointed.
First, file a petition and obtain an order. The order can direct removal of the case to the destination county, or the original court can retain jurisdiction. Then follow the procedure step by step. It’s fairly straightforward.
By the way, all of the above pertains to conservatorships also.
This is something that I have run across too many times in my court. Lawyers are not aware of the statutes, and so don’t advise their clients.
The main thing is that you can not remove a ward to another county or state without first obtaining authority from the court to do so. It’s your duty to advise your guardian or conservator.