Some GAP Act Considerations Early On
December 10, 2019 § Leave a comment
Concerns are being voiced about some provisions of the GAP Act, which will go into effect in a few mere weeks. The Guardianship Commission is going to the legislature to seek some technical amendments to the GAP Act that will address most of those concerns, but until that gets accomplished, here are some ideas to help deal with the rollout:
- § 93-20-125, MCA, deals with coverage of the GAP Act. All cases commenced on or after January 1, 2020, proceed under the GAP Act. So when is a case commenced? MRCP 3(a) specifies that “A civil action is commenced by filing a complaint with the court.” So the date when you file your complaint to open the guardianship or conservatorship will determine coverage. For example, if you filed a petition on November 15, 2019, but don’t obtain a judgment until January 15, 2020, it may or may not be covered by the GAP Act, as explained below. Likewise, if your fiduciary was appointed in 2016, your case may or not be covered by the GAP Act, as explained below. But, if you file your petition on or after January 1, 2020, your case is under the GAP Act, period.
- For those pre-GAP Act cases, there is a possibility that you could continue under the existing law. That’s possible because Section 125 provides that cases commenced before January 1, 2020, are covered by the GAP Act unless you move the court for a finding that the “application of a particular provision of this chapter would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties …” and the court finds that the particular provision does not apply. So, if you don’t want your pre-existing guardianship or conservatorship to be subject to the GAP Act, file a motion and ask the judge to except it.
- Some have questioned whether that motion in the previous paragraph needs to be filed before 1-1-2020. My opinion is that it doesn’t. I think it must be filed before the next event, such as accounting or motion for authority and direction, whenever that comes before the court.
- Many have pointed out the ambiguity in the GAP Act over the “notice” that must be given to various individuals in guardianships and conservatorships. I understand that ambiguity will be addressed in the technical amendments, but that will take until the end of the upcoming session of the legislature. How do we deal with it in the meantime? Here’s how I intend to. Notice to persons who are entitled to due process under the Fifth Amendment will be by service of process; those people are the ones whose liberty is being affected (adult and minor proposed wards in guardianships, and parents in minor guardianships), and whose property rights are being affected (proposed wards in conservatorships, and parents of proposed minor wards in conservatorships). In addition, the statute specifically requires that, in some actions, notice to one additional relative in Mississippi is required; that person should get process. All of these entitled to process are entitled to Rule 81 process. Everyone else gets simple notice, which requires only a mailing and certificate of service. “Notice” short of process is MRCP 5 notice, in my opinion. Your chancellor’s mileage may vary. Communicate with your chancellor and discover how she’s going to address these matters. It can vary from district to district, and even from chancellor to chancellor within a district.
- To implement the previous paragraph, looking at the law, I believe R81 process is required on the following: § 204, the minor, each parent, or, if none to be found, the adult nearest in kin who can be found; § 303, the proposed ward, any already-appointed conservator, and one relative selected in descending order from sub-sections (i) and (ii); § 403, the proposed ward, and one relative selected in descending order from sub-sections (i) and (ii), the VA if it has an interest; and any other person as directed by the court. Anyone else named in the Act as one to receive notice should be noticed per R5, unless the Act specifies summons.
- The GAP Act specifies that the MRCP controls procedures, so tailor your procedures to make them fit the MRCP. It’s not rocket science. You had to do the same thing with the old law, didn’t you? After all, most of the old law pre-existed the MRCP, and we had to engineer ways to tailor it to the new procedures, which we did successfully. We will do the same with this new law.
- MRCP 18(a) specifically states that “A party asserting a claim to relief as an original claim, counter-claim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims as he has against an opposing party.” Some people have raised the question whether the GAP Act allows a combined guardianship/conservatorship action. The GAP Act is silent on the point, yes. But MRCP speaks loudly that you can. And the GAP Act expressly provides at Section 107 that procedures are governed by the MRCP.
- Some people have also questioned whether, if combined actions are allowed under the MRCP, are two filing fees required? Why would they be? They are not now for combined guardianships of the person and estate, which are merely the old (now existing) terms for what under the GAP Act will be guardianship and conservatorship.
- There is nothing in the GAP Act that does away with the requirement of minor’s settlements. § 93-20-431 does allow transfers not exceeding $25,000 to a minor in a given year without court approval, but that is simply our current law recodified in the GAP Act. So when, exactly, is court approval required? I suggest that, court approval must be obtained in every transaction in which the minor is to receive a liquidated sum over $25,000, and in every case involving an unliquidated sum. A liquidated sum would include, for example, life insurance proceeds or a lump-sum survivor’s benefit for a set amount by contract. If the settlement is for an unliquidated sum, such as for personal injury settlement, the settlement must be found by a chancellor to be in the best interest of the ward; i.e., in a minor’s settlement proceeding. The statute does not specify the liquidated/unliquidated dichotomy spelled out above, but I believe that approach is the best practice and most protective of all parties.
- There are some hiccups with MEC adapting to the new nomenclature imposed by the GAP Act. That is being fixed even as this is being written. Our fingers are crossed that the issues will be fixed before January 1, 2020.
- Also to be addressed are other technical corrections to the Act to address some concerns that have been raised. This is normal and to be expected. Every statute with the extent of the GAP Act undergoes a similar process.
- Finally, there’s no reason to panic. The law is ever-changing, and sometimes the changes are big, like when the MRCP and MRE were adopted. The lawyers who adapted and learned to live with the changes survived and thrived, and the dinosaurs became extinct. It will be the same with the GAP Act.