GAP Act: Walk-Through of a Conservatorship

November 20, 2019 § Leave a comment

Continuing with our overview of the GAP Act.

At the GAP ACT MATERIALS tab you will find some helpful material presented by Chancellor Charles Smith at the Meridian GAP Act seminar earlier this month, entitled “Conservatorship — Walk Through.”

 

 

The Sale and the Bill of Sale

November 19, 2019 § 1 Comment

Dan McIntosh, IV (Dan) transferred his extensive gun collection to his father, Dan McIntosh, III (Mac), after he faced criminal charges in federal court. Dan gave Mac a bill of sale for the property. Mac, an attorney, represented Dan and eventually succeeded in getting the young man a favorable plea deal, although under its terms he was a convicted felon.

Dan later decided he wanted his guns back. Mac and Dan’s friend explained that he could not have them in his possession under state and federal law.

Unconvinced, Dan firebombed Mac’s home and rammed it with his Lexus; when he was arrested, he had a loaded shotgun in his vehicle. He had told his mother that he was in the middle of his suicide and he “had one thing to do before [his] life [ended.” In jail, Dan hanged himself.

Dan’d mother Beverly opened his estate and sued Mac for return of the gun collection. She claimed, among other things, that there was no consideration for the transfer, and a special chancellor was assigned the case. He found that the bill of sale and transfer were proper. Beverly appealed.

In Quick, Executrix of the Estate of McIntosh  v. McIntosh, decided October 22, 2019, the COA affirmed. You can read the entire opinion with its more complete recitation of facts. I thought you might find the court’s explication of the law of bill of sale and contracts useful. Here is how judge Westbrooks addressed it:

¶12. The chancellor found as a matter of law “that the April 2010, Bill of Sale from Mac to Dan was valid and that Dan became the owner of all of the items included in the Bill of Sale at that time and, further, that at the time of his demise, the assets included in the Bill of Sale were not assets of Mac’s estate.” There need not be any further iteration of his legal finding.

¶13. A “bill of sale” is defined as “an instrument for conveying title to personal property, absolutely or by way of security.” Black’s Law Dictionary (10th ed. 2014). “A transfer may be either an absolute assignment by way of gift or sale, or an assignment by way of mortgage or security only; but in either case when a written document of any sort is used to effect the transfer, the document is called technically a ‘bill of sale.’” Albert Gibson, Arthur Weldon & H. Gibson Rivington, Gibson’s Conveyancing 302 (14th ed. 1933). Mississippi has long recognized that “the acknowledgment of payment contained in the ‘bill of sale’ is merely a receipt which may be contradicted by parol evidence.” Smith v. Stevens, 299 So. 2d 690, 691 (Miss. 1974) (citing Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036 (1904)). A bill of sale is an instrument that is evidence of a contract. Historically the Mississippi Supreme Court has used the two terms interchangeably. See Mitts v. Price, 129 Miss. 554, 163-65 (1922) (illustrating the supreme court employing the terms “bill of sale” and “contract” interchangeably in its analysis to determine the reasonable performance period under the bill of sale at issue and discussing the bill of sale as a written contract for the sale of property); see also Hercules
Powder Co. v. Westmoreland, 249 Miss. 849, 164 So. 2d 471, 474 (1964) (using the phrase “bill of sale or contract” when finding that a valid contract of employment existed between co-defendants).

¶14. In order to form a valid contract, the laws of this State require the following: “(1) two or more contracting parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) parties with the legal capacity to make a contract; (5) mutual assent; and (6) no legal prohibition precluding contract formation.” Gandy v. Estate of Ford, 17 So. 3d 189, 193 (¶7) (Miss. Ct. App. 2009). A valid contract has to be supported by consideration. Id.

Consideration is, of course, one of the six elements required for the existence of a valid contract. The Mississippi Supreme Court has defined consideration for a promise as (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.

Marshall Durbin Food Corp., 909 So. 2d at 1273 (¶14) (citation and internal quotation marks omitted).

Where the instrument in controversy contains a statement or recital of consideration, it creates a rebuttable presumption that consideration actually existed. The general rule is that this presumption is established even by such expressions as “for value,” “for good and sufficient consideration,” “for value received” or, as in the present case, “for valuable consideration.”

Daniel v. Snowdoun Ass’n, 513 So. 2d 946, 950 (Miss. 1987) (citations omitted). “While the presumption does not preclude the defendant from putting on proof designed to show that the consideration was not actually paid, his ‘rebuttal must be made by a clear preponderance of the evidence.’” Marshall Durbin Food Corp., 909 So. 2d at 1274 (¶15) (quoting Daniel, 513 So. 2d at 950).

¶15. In Daniel, a nonprofit corporation (Snowdoun) was established in a codicil of the will of the testatrix, Elizabeth Garth, conveying the title to her childhood home to be opened as a museum. Daniel, 513 So. 2d at 948. Other bequeaths [sic] were made to the Mississippi University for Women and St. Paul’s Episcopal Church. Id. The widower sued, seeking to renounce the will, take his legal share, and have the bequests to MUW and St. Paul declared void. Id. The nonprofit corporation was not named as a party to the will contest, and its participation in settlement negotiations was not clear. Id. Regardless, a settlement was reached, leaving Snowdoun with about $100,000 as a result. Id. Daniel also executed a memorandum of understanding (MOU) in which he agreed to set up an inter vivos trust as a depository for the money. Id. Snowdoun was named the beneficiary of the trust. Id. Daniel failed to set up the trust fund, and Snowdoun sued for specific performance. Id. The MOU became the subject of litigation. Id. The nonprofit sued Daniel for specific performance. Id. In response Daniel claimed the agreement failed for lack of consideration. Id. He claimed that he only offered encouragement and appreciation, which is not consideration. Id at 949. The court was left to weigh whether the MOU was supported by consideration. Id. The case cited bedrock canons for the element of consideration in agreements: “[M]ere sentiments such as affection, love and the like, cannot in themselves furnish adequate consideration for an enforceable contract . . . considerations must come from the parties to the agreement.” Id. at 949. Further explaining that “[c]onsideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some benefit to the defendant or some detriment to the plaintiff; but in all events it must be moving from the plaintiff.” Id.

¶16. While Daniel tried to claim that Snowdoun had no inducement because their interests were aligned during the settlement that led to the MOU, Snowdoun claimed that it intervened in the negotiations because of Daniel’s encouragement. The Mississippi Supreme Court found that the record could support both and held it “will not overturn a chancellor’s finding of fact unless he is manifestly wrong.” Id. at 951.

The court went on to find various ways that the chancellor’s findings of consideration were supported by evidence, and went on to conclude that Beverly had failed to rebut the presumption of valid consideration by clear and convincing evidence.

Peril of Proper Process: Certified Mail Fails Again

November 18, 2019 § Leave a comment

Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.

Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”

As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.

On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.

Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.

On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.

In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:

¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).

¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).

¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).

[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.

¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.

¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.

¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).

¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.

¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).

¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.

[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).

Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).

It would be interesting to see what the MSSC would do with this issue.

Street Art

November 15, 2019 § 2 Comments

Street Art. The creative urge finds many avenues of expression. The range of artistic creations one can see on a walk is impressive, from posters to frescoes to carnival masks to mosaics to store signs to doo-dads. These few are from places as diverse as Russia, Meridian, Charleston MS, Amsterdam, and Las Terrazas Cuba. Many are from Freak Alley in Boise Idaho. You might be able to pinpoint which are from where.

(Click on any picture to see a larger image)

GAP Act: Guardianship of an Adult, Part II

November 13, 2019 § Leave a comment

Continuing with an overview of the GAP Act.

Section numbers correspond to SB 2828.

Duties of guardian (312)

Guardian is a fiduciary.

Except as limited by the court, the guardian makes decisions about the support, care, education, health, and welfare of the ward to the extent made necessary by the ward’s limitations.

Guardian promotes self-determination by the ward, encourages participation in decision-making, acts on the ward’s behalf, develops the ward’s capacity to act on the ward’s own behalf.

In carrying out the duties, the guardian may: (1) become personally acquainted with the ward’s limitations and physical and mental health through regular visits and other means; (2) identify the ward’s preferences; (3) identify supportive services and relationships.

Guardian exercises reasonable diligence and prudence in decisions: (1) takes reasonable care of the ward’s personal effects, pets, and service animals; (2) brings conservatorship proceeding if necessary; (3) expends ward’s funds for the ward’s needs; (4) conserves surplus funds for future needs and pays surplus to any conservator; and (5) monitors the services being provided to the ward.

In making a decision for the ward, the guardian makes the decision that the guardian reasonably believes the ward would have made unless it would harm the ward or the ward’s financial interest. The guardian should look to previous statements of preference.

If the ward’s preferences can not be determined, then the guardian makes decisions in the best interest of the ward, considering: (1) information from professionals and other persons in the best interest of the ward; (2) information the G believes the ward would have considered were the ward capable; (3) “Other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.”

The guardian must immediately notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously taken away.

Powers of the guardian (313):

Except as limited by the court, a guardian may: (1) apply for and receive funds for support of the ward; (2) unless inconsistent with the court order, establish a dwelling place; (3) consent to health or other care, treatment or service; (4) if no conservator has been appointed, initiate proceedings to have one appointed, or initiate proceedings to compel a person to support the ward or pay funds for the ward’s benefit; (5) reasonably delegate decision-making to the adult if reasonable; (6) receive the adult’s health-care information.

In exercising power to select a dwelling, the guardian must: (1) select a dwelling the guardian believes the ward would select if able, and in the adult’s best interest; (2) give priority to a setting that will allow the ward to interact with persons important to the ward and in the least restrictive manner feasible; (3) place the ward in a nursing home, mental health facility, or other restrictive setting only if:

(a) the placement is included in the guardian’s plan under Section 315;

(b) the court authorizes the placement;

(c) the guardian gives 14-days’ advance notice to all entitled to notice per Section 309(4), or court order, and no objection is filed;

(d) move the ward out of state only if consistent with the guardian’s plan and authorized by court order;

(e) move the ward resulting in sale of or surrender of lease of primary residence only if:

(i) such action is specifically included in the guardian’s Section 315 plan;

(ii) the court authorizes such action by specific order;

(iii) notice was given 14 days in advance to the adult and all Section 309(4) persons and no objection is filed; and

(iv) notify the court if the ward’s dwelling has been so damaged by fire, flood, etc. so that the ward has to relocate temporarily or permanently.

In exercising health care decisions, the guardian shall: (1) involve the ward in decision-making to extent feasible; (2) defer to decisions by an agent under a health-care directive, and cooperate with the agent; (3) take into account the risks and benefits of treatment options, and the current and previous wishes of the ward, if known.

Special limitations on guardian’s power (314):

Unless authorized by the court, the guardian may not revoke or amend an advanced health-care directive or POA for finances executed by the adult.

Health-care decisions of an agent under a health-care directive take precedence over those of the guardian.
Financial decisions of an agent under a financial POA take precedence over those of the G.

The guardian must cooperate with the duly-appointed agents.

Guardian may not commit the adult to a mental-health facility except in an involuntary civil commitment procedure.

Guardian may not restrict the ward’s communications, visits, or interactions with others unless: (1) specifically authorized by court order; (2) a protective order is in place; or (3) the guardian has good cause to believe restriction is necessary to protect the ward, and can impose restrictions:

(a) for not to exceed 7 business days if the person restricted had prior family or social relationship with the ward; or

(b) for not more than 60 days for all others.

Guardian’s Plan (315):

If required by the court, the guardian shall file a plan for care of the adult not later than 90 days after the appointment or order to file a plan.

If there is a change in circumstances, or if the guardian wishes to deviate from the original plan, the guardian must file a revised plan no later than 90 days after the change or decision to deviate.

Plan must be based on needs of the adult taking into account the adult’s best interest, preferences, values, and prior directives, and must include: (1) the adult’s proposed living arrangements and services; (2) expected social and educational activities; (3) plans for regular visitation and identity of those to visit; (4) nature and frequency of visits and communication; (5) goals for the adult, including restoration of decision-making rights, and how the G intends to accomplish; (6) whether the ward has an existing plan, and if so whether this plan is consistent; and (7) itemization of charges the G anticipates for services to be rendered.

Guardian must give notice and a copy of the plan to the ward, the ward’s spouse, parents, children, and any other person as directed by the court.

Well-being report and monitoring (316):

If any significant change in circumstances or the guardian wishes to deviate from the plan, the guardian must file a report stating: (1) the mental, physical, and social condition of the adult; (2) the living arrangements during the reporting period; (3) summary of services provided and the guardian’s opinion of the adequacy of the ward’s care; (4) summary of the guardian’s visits with the ward including dates; (5) action taken on behalf of the ward; (6) the extent to which the adult has participated in decision-making; (7) if the ward is living in a mental health or health-care facility, the guardian’s opinion as to whether the care is consistent with the adult’s best interest and preferences; (8) any business relationship the guardian has with any person paid by the guardian to provide services; (9) copy of the ’s most recent plan, stating whether the guardian has deviated, and if so how and why; (10) plans for future care and support; (11) recommendation as to whether there is a need for continued guardianship, or whether change in the scope of the guardianship is needed; (12) whether any co-guardian or successor guardian is alive and able to serve; (13) photos of the ward and living conditions, if required by the court; and (14) itemization of amounts requested for reimbursement or legal fees.

The court may appoint a GAL to review a report, or a plan, or to interview the guardian or ward, or to investigate any other matter involving the guardianship.

Notice of filing, with a copy, must be sent not later than 14 days after filing to the adult ward, the spouse, parents, children, and any other person the court determines.

The court is required to establish procedures for monitoring reports and to review each report at least annually to determine whether: (1) the report includes sufficient information to determine whether the guardian has complied with the guardian’s duties; (2) the guardianship should continue; (3) the guardian’s requested fees, if any, should be approved.

If the court determines that there is reason to believe that the guardian has not complied with the guardian’s duties, or that the guardianship should be modified or terminated, the court: (1) shall notify the ward, spouse, parents, children and other persons entitled to notice under Section 309(4) or by court order; (2) may appoint a GAL to investigate; (3) may hold a hearing to consider removal of the guardian, or termination of the guardianship, or change in powers of guardian.

The guardian may petition the court for approval of a report. If the court approves, there is a rebuttable presumption that the report is accurate as to any matter adequately disclosed in it.

Removal of guardian and appointment of successor (317):

“Upon petition and for good cause shown” the court may hold a hearing to consider whether to remove a guardian for failure to perform duties, and the court may appoint a successor.

Notice of a petition must be given to the ward, the guardian, and any other person the court determines.

A ward seeking to remove a guardian has the right to choose an attorney for representation. “The court shall award reasonable attorney’s fees to the attorney as provided in Section 118.”

Not later than 10 days after appointment of a successor guardian, “the court shall give notice” of the appointment to the adult ward, spouse, parents, children, and any other person ordered by the court.

Termination or modification of guardianship (318):

Upon petition and for good cause shown, the court may hold a hearing to consider whether: (1) termination should be ordered because a basis for appointment under Section 301 does not exist; or (2) termination would be in the best interest of the ward; or (3) for other good cause; or (4) modification should be ordered because the extent of protection or assistance ordered is not appropriate, or for other good cause.
Notice of the petition must be given to the ward, the guardian, and any other person the court determines.

“On presentation of prima facie evidence” the court shall order termination unless proven that a basis for appointment exists under Section 301.

The court modifies the powers granted if powers are excessive or inadequate due to changes in the abilities or limitations of the adult, the adult’s supports, or other circumstances.

Unless the court orders otherwise for good cause, the court shall follow the same procedures to safeguard the rights of the adult that apply to a petition for guardianship.

A ward who seeks to terminate may choose an attorney, and the court may award attorney’s fees as provided in Section 118.

Checklisting

November 12, 2019 § Leave a comment

For those of you who have not been around here for long, I remind you that there are some helpful trial checklists available. All you have to do is look for the “Categories” button (on PC’s) or link (mobile) and click on the “Checklists” category.

Checklists are your guide for what you need to prove in different courtroom matters, and even in handling an estate.

You will find checklists for child custody, alimony, equitable distribution, grandparent visitation, adverse possession, income tax dependency exemption, and more. And, as mentioned, there is even a checklist you can use to make sure you have done everything you need to do before you can close an estate. You can print out the ones you need and use them in court.

November 11, 2019 § Leave a comment

State Holiday

Courthouse closed

Dispatches from the Farthest Outposts of Civilization

November 8, 2019 § Leave a comment

GAP Act: Guardianship of an Adult, Part I

November 6, 2019 § 4 Comments

Continuing with an overview of the GAP Act.

Section numbers correspond to SB 2828.

Basis for appointment (301):

Court may appoint a guardian “when the respondent lacks the ability to meet essential requirements for physical health, safety, or self-care” because: (1) unable to receive and evaluate information or make or communicate decisions, even with support or technological assistance; or (2) is found to be a person with mental illness or intellectual disability who is incapable of taking care of his or her person.

The court may grant the guardian only those powers necessitated by the limitations and needs of the ward, and must enter “orders that will encourage the development of the ward’s maximum self-determination and independence.

The court must consider any less restrictive alternatives that would meet the needs of the ward.

Petition (302):

May be filed by “chancellor or clerk of the chancery court, any relative or friend, or any other interested party, including the adult for whom the order is sought.

Sworn petition: (1) alleging that the adult is in need of a guardianship; (2) stating the name and address of the attorney representing the petitioner, if any; (3) under the style of the case before the body, the following language must appear in bold or highlighted type:

The relief sought herein may affect your legal rights. You have a right to notice of any hearing on this petition, to attend any such hearing, and to be represented by an attorney.

Notice of hearing (303):

Seven days’ notice to the adult respondent; however, for good cause the court may order shorter notice.

Notice must be given, but “Failure to give notice does not preclude the court from appointing a guardian.”

Unless the court finds that the adult is competent and joins in the petition, notice must be given to: (1) the adult for whom G is sought; (2) any appointed conservator; (3) at least one relative from among those specified in the statute; (4) anyone else directed by the court.

VA must be noticed if the adult is a recipient of benefits.
After appointment, notice of hearing, with a copy of the motion or petition, must be served on the respondent, guardian, and anyone else directed by the court.

GAL (304):

Court may appoint a GAL payable out of the estate of the respondent only if necessary to protect the interest of the adult.

Failure to appoint a GAL does not void the judgment and is not error.

Hearing and Professional evaluation (305):

The court must conduct a hearing to determine whether a G should be appointed, and the judge may appoint a GAL “to present the interests of the respondent”.

The judge determines the number and character of witnesses, but witnesses must include: (1) two licensed physicians, or (2) one licensed physician and either one licensed psychologist, nurse practitioner, or physician’s assistant.

The medical professionals must have personally examined the respondent and completed certificates of the results of examination filed with the chancery clerk and made part of the record. The certificates may be considered by the court, and the professionals may be called as witnesses.

The personal examination may be in person or via telemedicine conforming to MCA 83-9-351.

Nurse practitioner or physician’s assistant must comply with law regarding physician supervision.

Rights at hearing (306):

The respondent may: (1) present evidence and subpoena witnesses and documents; (2) examine witnesses; and (3) otherwise participate.
The proposed guardian must attend unless excused by the court for good cause.

Hearing must be closed for good cause shown on request of the respondent.

The court may allow any person to participate on determining that the best interest of the respondent will be served.

Confidentiality (307):

Record is confidential, but may be accessed by: (1) an adult subject to the proceeding; (2) an attorney designated by the adult; (3) any person subject to notice under Section 309(4).

Any other person may petition the court for access based on good cause. The court may grant access if: (1) in the best interest of the respondent or ward; or (2) furthers public interest; and (3) does not endanger the welfare or financial interest of the respondent or ward.

Report of GAL or professional evaluations may be sealed “when determined necessary by the court.” Even if sealed, the documents will be available to: (1) the court; (2) the respondent or ward; (3) the petitioner, GAL, attorneys for petitioner and respondent for purposes of the proceeding; (4) an agent under POA for health care, unless the court orders otherwise.

Who may be appointed guardian (308):

The court appoints the person in its discretion who is in the best interest of the respondent.

If two or more are considered the court appoints the “best qualified.”

To determine best qualified, the court considers the:(1) person’s relationship with the respondent; (2) person’s skills; (3) the expressed wishes of the respondent, including designation made in a will; (4) durable POA or health-care directive; (5) the extent to which the person and the respondent have similar values and preferences; and (6) the likelihood of the person’s success as a guardian.

The court may decline to appoint the person requesting.

If a qualified guardian cannot be determined, the court may appoint the chancery clerk, unless there is a conflict or other ground for recusal.

Court may not appoint: (1) a person who provides paid services to the respondent; (2) a person employed by a person who provides paid services to respondent; (3) the spouse, parent, or child of a person who provides or is employed to provide paid services to the respondent, unless

(a) the individual is related to the respondent by blood, marriage, or adoption; or (b) the court finds by clear and convincing evidence that the person is best qualified and available, and appointment of such a person is in the respondent’s best interest.

Court also may not appoint an owner, operator, or employee of a long-term-care institution at which the respondent is receiving care unless related to the respondent by blood, marriage, or adoption.

Order (309):

The court order appointing a guardian must include specific findings by clear and convincing evidence that: (1) the needs of the respondent can not be met by a less restrictive alternative, including use of supportive services and technology; and (2) the respondent was given proper notice of hearing.

An order granting full guardianship must state the basis for granting it and findings supporting a conclusion that a limited guardianship would not meet the “functional needs of the ward.”

An order granting limited guardianship must state the specific powers granted to the guardian.

The court’s order must also include contact information for each person entitled to subsequent notices of: (1) rights of the adult under Section 310; (2) change of the ward’s primary dwelling; (3) delegation of powers by the G; (4) the G’s plan; (5) access to court records; (6) death or significant change in condition of the ward; (7) limitation or modification of the G’s powers; and (8) removal of the guardian.

A spouse and adult children of the ward are entitled to notice unless the court directs otherwise for the best interest of the ward.

“If the chancellor finds from the evidence that the person is incapable of taking care of his person, the chancellor shall appoint a guardian over his person.”

“Costs and expenses” of the proceeding are paid by the estate of the ward if a G is appointed. If no estate, or if no guardian is appointed, “costs and expenses” are paid by the petitioner.

Notice of Order (310):

Within 14 days of the order, guardian must serve a copy of the order of appointment on the ward and all other persons given notice under Section 309. The service must include a notice of right to request termination or modification.

Within 14 days of the order the guardian must request the court to give a statement of the rights of the ward and must serve it on all Section 309 persons. The statement must notify the ward of the right to: (1) seek termination, modification, or removal, and to choose an attorney; (2) be involved in decisions about care, dwelling, activities, or social interactions; (3) be involved in health-care decisions; (4) be notified at least 14 days in advance of a change in dwelling, or move to a nursing home or other restrictive facility unless the move is in the guardian’s plan or in a court order; (5) object to a move and the procedure for objecting; (6) communicate visit, and interact with others, unless the court has ordered otherwise; (7) receive a copy of the G’s plan; and (8) object to the guardian’s plan or report.

The guardian may restrict contact by the ward with others if authorized by the court, or if a protective order is in place. If the guardian has good cause to believe that interaction with a specific person would pose a risk of physical, psychological, or financial harm to the ward, the guardian  may restrict contact: (1) for not more than 7 business days if the person has a pre-existing family or social relationship with the ward; or (2) for not more than 60 days for others.

Emergency guardianship of adult (311):

Same as that of a minor.

 

The Albright Score Board

November 5, 2019 § 2 Comments

Too many lawyers consider the judges’ findings on Albright factors to be like some sort of score board. I hear it in R59 motions: “But, Judge, we prevailed in one more factor, so my client should have been awarded custody.” And we see it in appeals, where the losing side argues something similar.

In a recent decision, Judge Jack Wilson of the COA spelled out how the trial and appellate courts are supposed to deal with Albright. Since it’s an excellent, succinct exposition on the law, I thought it would be helpful to include it for your use. This is from the case of Morgan v. Whitehead, handed down October 15, 2019:

¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant question is whether the chancellor’s decision is supported by the evidence, not whether we agree with it. Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).

¶19. In child custody cases, the “polestar consideration . . . is the best interest and welfare of the child.” Albright, 437 So. 2d at 1005. In determining where the child’s best interest lies, the chancellor should consider the following factors: (1) age, health, and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3) parenting skills; (4) willingness and capacity to provide primary child care; (5) both parents’ employment responsibilities; (6) physical and mental health and age of the parents; (7) emotional ties between parent and child; (8) moral fitness; (9) “the home, school and community records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Id.

¶20. Albright does not require the chancellor to award custody to the parent who “wins” the most factors. Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012). “The point of Albright is to identify the custody arrangement that would be in the child’s best interest—not to determine what is in either parent’s best interest or which parent is the better person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). In addition, the chancellor is not required to find that each factor favors one parent or the other. Harden v. Scarborough, 240 So. 3d 1246, 1251 (¶11) (Miss. Ct. App. 2018). The chancellor is only required to consider each factor that is applicable to the case and determine what custody arrangement would be in the child’s best interest. Id. “We review the chancellor’s application of the factors for manifest error, giving deference to the weight that he assigned each factor.” Id.

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