GAP Act: General Provisions, Part II
October 9, 2019 § Leave a comment
Section numbers correspond to SB 2828.
Death, removal, or resignation (112):
Appointment terminates on death, removal, or resignation.
Resignation is effective only when approved by the court.
Death, removal, or resignation does not affect liability or duty to account.
Notice of Hearing (113):
Per MRCP 81.
Also: “Notice of hearing under this act must be in at least sixteen-point font, in plain language, and, to the extent feasible, in a language in which the person to be notified is proficient.”
Any person “interested in the ward’s welfare” may file a motion to intervene per MRCP 24.
Waiver of notice (114):
Any person entitled to notice, except the respondent or ward, may waive notice personally or by attorney.
The court may appoint a GAL.
The GAL may not be the same person as the respondent’s attorney.
Request for notice (116):
Any person not otherwise entitled to notice may file a request showing the person’s interest and an address for notice. If the court approves, that person will be entitled to all future notices.
Disclosure of bankruptcy and criminal history (117):
Before appointment, person applying to be guardian or conservator must disclose to the court: (1) whether the person has ever been a debtor in bankruptcy, insolvency, or receivership; and (2) whether ever convicted of a felony, or a crime involving “dishonesty, neglect, violence, or use of physical force, or any crime relevant to the functions of guardian or conservator.
Attorney may be awarded fees and expenses after approval by the court.
Compensation may only be made after court approval, but court approval is not required before a service is provided or an expense is incurred.
If the court dismisses a petition and finds bad faith, the court may assess “any costs the court deems appropriate.”
Compensation of guardian or conservator(119):
Court may award guardian or conservator reimbursement of expenses and compensation for services. The statute spells out the factors the court must consider.
If the guardian or conservator has to defend a ward’s action to modify or terminate the guardianship or conservatorship, or to remove the guardian or conservator, the court may “order compensation” to the guardian or conservator “only to the extent the court determines the opposition was reasonably necessary to protect the interest of the ward.”
A guardian or a conservator is not personally liable for actions of the ward.
Instruction or ratification (121):
A guardian or conservator may petition the court for instructions or ratification. Notice must be given and a hearing must be held.
Third-party acceptance of authority (122):
Under certain specified circumstances a third party may refuse to recognize authority of the guardian or conservator.
Temporary Substitute guardian or conservator (123):
Court may appoint and remove at any time. While the appointment is in effect, the powers of the existing guardian or conservator are suspended.
Registration of foreign judgment (124):
After registration of the foreign judgment of appointment, the foreign guardian or conservator may exercise all powers of the foreign law except as prohibited by the GAP Act and other Miss. law.