A Caveat for Affidavits of Known Creditors

July 26, 2016 § 2 Comments

Your client is going to be appointed executor of an estate. So it makes perfect sense that, when he comes in to sign the petition, at the same time you have him sign the oath, affidavit of known creditors, and notices to those known creditors. Why should he have to make more than one trip to your office, right? Then, after the order appointing him is signed by the judge, you go ahead and file the pre-signed oath, affidavit, and notices.

But is that effective? Does it comply with the statute?

As far as the oath is concerned, I see no problem. The oath is taken in his capacity as an individual, and is only effective once the order appointing him is signed by the judge and the oath is thereafter filed.

But the notice and affidavit requirements are a different matter. MCA 91-7-45(1) specifically requires the “executor or administrator” to make reasonable and diligent efforts to identify and give notice to creditors. Only the executor or administrator can do this function, and there is no executor or administrator until the judge signs the appointing order, and a bond (if required) and oath are filed.

Likewise, MCA 91-7-45(2) requires the “executor or administrator” to file the affidavit of known creditors that must be on file before the Notice to Creditors is published. Only the executor or administrator can do this. Signing the affidavit before one is appointed and qualified is not signing in the capacity of executor or administrator.

I am not aware of any case law specifically addressing these points, but the many cases construing probate statutes are emphatic that the specific language of the statutes control, and that substantial or nominal compliance is not enough.

Another post discussing the right way and order to do the notice and affidavit is here.

More than Known Creditors

August 5, 2019 § Leave a comment

MCA 93-7-145 is the statute that requires publication of notice to creditors in an estate matter. A prerequisite to publication is the filing of an affidavit by the fiduciary.

Most lawyers with whom I come into contact call that affidavit “The Affidavit of Known Creditors.”

But that is a misnomer, and a dangerously misleading one at that, because it is not at all an affidavit stating only the creditors who are known; the statute requires that the fiduciary must make “reasonably diligent efforts to identify persons having claims against the estate,” and make affidavit of those efforts.

In Estate of Petrick, 635 So. 2d 1389, (Miss. 1994), the Mississippi Supreme Court stated:

“From a reading of this statute it is clear that an administratrix has four responsibilities: (1) she must make reasonably diligent efforts to ascertain creditors having claims against the estate and mail them notice of the 90 day period within which to file a claim; (2) she must file an affidavit stating that she has complied with the first subsection; (3) she must publish in some newspaper in the county a notice to creditors explaining that they have 90 days within which to file claims against the estate; and (4) she must file proof of publication with the clerk of court.”

In Petrick the court affirmed a chancellor’s ruling allowing the untimely $6,220 claim of a medical firm whose status as a claimant should have been reasonably known to the fiduciary, but the fiduciary did not include the firm in her affidavit and did not send it notice.

Another flaw in the fiduciary’s actions was that she published notice to creditors first, and filed her affidavit a month after beginning publication. The court in Petrick stated that publication may be done only after the affidavit is filed.

A previous post on point is at this link.

 

Affidavits in Chancery

October 10, 2018 § 4 Comments

An affidavit is a sworn statement. It must include an oath. You can read about the distinction between an oath and an acknowledgment at this link. A document purporting to do the work of an affidavit that bears an authentication instead of an affidavit is void for that purpose.

There are several affidavits that we use routinely in chancery:

  • Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity.
  • Affidavit of unknown heirs. Before publishing process for unknown heirs in an action to determine heirship, one must file an affidavit that “the names of such heirs are unknown,” per MRCP 4(c)(4)(D), and it must also state per MRCP 4(c)(4)(A) that the post office address is unknown to the petitioner “after diligent inquiry.” These are key ingredients, and failure to follow the rules will mean that you don’t have good process. The affidavit must be made by the petitioner unless certain specific language is used as spelled out in the rule.
  • Affidavit of diligent inquiry for publication process. Before you can publish process for a non-resident or a person not to be found in the state per MRCP 4(c)(4)(A), there must be an affidavit filed with the clerk stating either that the person or persons are non-residents or are not to be found in the state after diligent inquiry. If the post office address is unknown, publication proceeds. If a post office address is known, you must include it in your publication and take the additional step of having the clerk mail a copy of the summons and pleading to that address by regular first-class mail, and the clerk must make a notation on the docket to that effect. The affidavit must be made by the petitioner unless the specific language required in the rule is applied.
  • Affidavits in support of and in opposition to summary judgment. Rule 56 says that, “When a motion for summary judgment is made and supported [by affidavits] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise as provided in this rule. must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
  • Affidavit of non-collusion. MCA § 93-5-7, states that “(7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of the plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.”
  • UCCJEA affidavit. In any case involving custody, each party is required to file an affidavit spelling out the information required in MCA § 93-27-209, and the duty to provide the information to the court is a continuing one, meaning that the affidavit must be updated as circumstances change or as newly discovered information becomes known.
  • Affidavits on motions. MRCP 43(e) states that, “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Note that the rule applies only to motions, and not to hearings on pleadings that are on the merits seeking a final judgment. Rule 7 describes the difference between a pleading and a motion.
  • Sworn pleadings in probate and fiduciary matters. Uniform Chancery Court Rule 6.13 specifically states in part that, “Every pleading, including accounts and reports, filed by a fiduciary shall be personally signed and sworn to by him.” I take that to mean that every document filed by your fiduciary shall be sworn, thus making it the equivalent of an affidavit. MCA § 93-13-38(1) reads, “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 a guardianship of the person and estate.” MCA § 93-13-259 says that, ” … all laws relative to the guardianship of a minor shall be applicable to a conservator.”

THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 11 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

Reprise: Common Mistakes of Fiduciaries (and their Attorneys)

December 22, 2014 § Leave a comment

FIVE MISTAKES THAT FIDUCIARIES MAKE

July 18, 2012 § 4 Comments

  1. Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
  2. Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly 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, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
  3. Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
  4. Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
  5. Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.

FIVE MISTAKES THAT FIDUCIARIES MAKE

July 18, 2012 § 7 Comments

  1. Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
  2. Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly 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, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
  3. Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
  4. Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
  5. Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.

ESSENTIAL PROCEDURES IN A GUARDIANSHIP AND CONSERVATORSHIP

September 7, 2011 § 1 Comment

MCA 93-13-38 (1)  states:

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.

MCA 93-13-255 provides that a conservator appointed by the court shall have “the same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator.”

That means that in your guardianship or conservatorship you will need to file your affidavit of creditors in the proper time, publish to creditors, file an inventory, and do all the other acts and things required of fiduciaries in estates.

And keep in mind that the MSSC has made it abundantly clear that there are dire consequences for both the fiduciary and the attorney for failing to do so.

Summary of the GAP Act

September 13, 2019 Comments Off on Summary of the GAP Act

This excellent summary of the GAP Act was presented to the Conference of Mississippi Chancery Clerks in February, 2019, by Attorneys Gray Edmondson of Oxford and Rick Courtney of Jackson.

MISSISSIPPI GAP ACT

General Provisions – Article 1

I. Short Title (Sec. 101)

A. The act may be cited as the Mississippi Guardianship and Conservatorship Act.

II. Definitions (Sec. 102)

III. Supplemental Principles of Law and Equity Applicable (Sec. 103)

A. Unless displaced by a particular provision of this act, the principles of law and equity supplement its provisions.

IV. Subject-matter jurisdiction (Sec. 104)

A. The chancery court has jurisdiction over a guardianship for a respondent domiciled or present in the state.
B. After notice is given and until termination of the proceeding, the court in white the petition is
filed has:

  1. Exclusive jurisdiction to determine need for guardianship;
  2. Exclusive jurisdiction to determine how property of the respondent must be managed;
  3. Nonexclusive jurisdiction to determine the validity of a claim against the respondent; and
  4. If a guardian is appointed, exclusive jurisdiction over issues related to administration.
    C. A court that appoints a guardian has exclusive jurisdiction until the court terminates the
    proceeding.

V. Transfer of Proceeding (Sec. 105)

A. The Act does not apply to a guardianship or conservatorship for an adult that is subject to the transfer provision of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
B. After appointment of a guardian, the court that made the appointment may transfer the proceeding to another county in Mississippi or to another state in the best interest of the ward upon the filing of a final account and qualification of the conservator or guardianship in the other court.
C. If there are foreign courts determining guardianship, courts must consult with each other and accept or decline jurisdiction, in the interest of the respondent.

VI. Venue (Sec. 106)

A. Venue for a guardianship proceeding for a minor:

  1. County in which the minor resides or is present when proceeding commences; or
  2. County in which another proceeding concern custody or parental rights of the minor is pending.
    B. Venue for a guardianship proceeding for an adult:
  3. County in which the adult resides; or
  4. If the adult is admitted to an institution by court order, the county in which the court is located.
    C. Venue for a conservatorship proceeding:
  5. County in which the respondent resides, whether or not guardian has been appointed elsewhere; or
  6. If the respondent does not reside in Mississippi, in any county where respondent’s property is located.
    D. For proceedings in more than one county, the court where the first proceeding was brought has exclusive jurisdiction unless the court determines venue is properly in another court or that the interest of just requires.

VII. Practice in the Court (Sec. 107)

A. The Mississippi Rules of Evidence and Mississippi Rules of Civil Procedure govern proceedings under the act.
B. If proceedings for guardianship and conservatorship are pending in the same court, they may be consolidated.

VIII. Letters of Guardianship or Conservatorship (Sec. 108)

A. The clerk must issue letters of guardianship to a guardian who takes the proper oath, posts any required bond, and submits a certificate of attorney and certificate of fiduciary unless waived.
B. The clerk must issue letters of conservatorship to a conservator who takes the proper oath, posts any required bond, and submits a certificate of attorney and certificate of fiduciary unless waived or unless the conservator complies with another asset-protection arrangement required by the court.
C. The court may limit the powers conferred on a guardian or conservator. The court shall direct the court to issue letters of guardianship or conservatorship reflecting the limitation. The court shall direct the clerk to give notice of the limitation by service of a copy of the court’s order on the guardian or conservator, the ward, and any other person the court determines.
D. Limitations on the powers of a guardian or conservator or on the property subject to the conservatorship must be stated in the letters of guardianship or conservatorship.

IX. Effect of Acceptance of Appointment (Sec. 109)

A. By accepting appointment, a guardian or conservator submits to the personal jurisdiction f the court in any proceeding relating to the guardianship or conservatorship.

X. Co-Guardian; Co-Conservator (Sec. 110)

A. The court may appoint a co-guardian or co-conservator when the court deems it appropriate and the co-guardian or co-conservator must comply with Section 108.

XI. Judicial Appointment of Successor Guardian or Successor Conservator (Sec. 111)

A. The court may appoint a successor guardian or conservator at any time.
B. A person entitled to petition for appointment of guardian or conservator may petition for a successor.
C. Court appointed successor guardians or conservators must comply with Section 108.

XII. Effect of Death, Removal, or Resignation of Guardian or Conservator (Sec. 112)

A. Appointment of a guardian or conservator terminates upon death or removal or when the court accepts the resignation of the guardian or conservator.
B. A guardian or conservator must petition the court to resign which will be effective upon acceptance by the court.
C. Death, resignation, or removal does not affect the liability for a previous act or obligation to account affect liability for an act taken while serving.

XIII. Notice of Hearing Generally (Sec. 113)

A. Unless provided in Section 203, 303(3) or 403(3), if notice of a hearing is required, the movant must give notice of the date, time, and place of the hearing in compliance with Rule 81.
B. Proof of notice must be made before or at the hearing. Proof of notice must be filed.
C. Notice of hearing must be in at least 16-point font, in plain language, and in a language the person to be notified is proficient.
D. Any interested party may seek to intervene under Rule 24.

XIV. Waiver of Notice (Sec. 114)

A. Except as otherwise stated in the act, anyone to be noticed waive notice. However, a respondent or ward may not waive notice.

XV. Guardian ad Litem (Sec. 115)

A. A guardian ad litem may be appointed by the court at any time

XVI. Request for Notice (Sec. 116)

A. A person may file a request for notice under the act even if not a party otherwise required to be noticed under Section 203, 303(c), or 403(c).
B. Any such request must include a statement showing the interest of the person making the request and the address of the person or his/her attorney.
C. If the request is approved, notice must be given to the conservator or guardian, if one has been appointed.

XVII. Disclosure of Bankruptcy or Criminal History (Sec. 117)

A. Before accepting appointment as guardian or conservator, a person must disclose

  1. Any bankruptcy, insolvency, or receivership proceeding; or
  2. If the person has been convicted of a felony; a crime involving dishonesty, neglect, violence, or use of physical force; or any other crime relevant to the functions of a conservator or guardian.

XVIII. Compensation and Expenses; in General (Sec. 118)

A. An attorney for a respondent may be awarded reasonable compensation in the discretion of the court.
B. An attorney or other person whose services resulted in an order beneficial to a ward may be awarded reasonable compensation in the discretion of the court.
C. The court must approve compensation prior to payment, but such approval is not required prior to services being provided or expenses being incurred.
D. If the court dismisses any petition under the act and determines that the petition was in bad faith, the court may assess any costs the court deems reasonable.

XIX. Compensation of Guardian or Conservator (Sec. 119)

A. A guardian or conservator may be awarded reasonable compensation in the discretion of the court and may be reimbursed for appropriate expenses advanced for the ward.
B. In determining reasonable compensation for a guardian or conservator, the court shall consider:

  1. The necessity and quality of the services provided;
  2. The experience, training, professional standing, and skills of the guardian or conservator;
  3. The difficulty of the services performed, including the degree of skill and care required;
  4. The conditions and circumstances under which a service was performed, including whether the services was provided outside regular business hours or under dangers or extraordinary conditions;
  5. The effect of the services on the ward;
  6. The extent to which the services provided were or were not consistent with the guardian’s plan under Section 315 or conservator’s plan under Section 419; and
  7. Customary fees in the community.
    C. Guardians and conservators need not use personal funds for the ward.
    D. If a ward seeks to modify or terminate a guardianship or conservatorship, the court may order compensation to the guardian or conservator for time spent in opposing such request only to the extent the court determines opposition was reasonably necessary to protect the interests of the ward.

XX. Liability of Guardian or Conservator for Act of Ward (Sec. 120)

A. Guardians and conservators are not personally liable to another person solely because of the acts or omissions of the ward.

XXI. Petition After Appointment for Instruction or Ratification. (Sec. 121)

A. A guardian or conservator may petition the court for instructions concerning fiduciary responsibility or ratification of a particular act related to their service.
B. On proper notice of such petition, the court may give instruction in an appropriate order.

XXII. Third-Party Acceptance of Authority of Guardian or Conservator (Sec 122)

A. A person may choose to not recognize the authority of a guardian to act on behalf of a ward if:

  1. The person has actual knowledge or reasonable belief that letters of conservatorship or guardianship are invalid or that the person appointed is exceeding or improperly exercising their authority;
  2. The person has actual knowledge that the ward is subject to physical or financial abuse, neglect, exploitation, or abandonment by the person appointed or anyone acting for them;
  3. The proposed action would be inconsistent with the act; or
  4. The person makes, or has knowledge that another has made, a report to a governmental agency providing protective services stating a good-faith belief that the ward is subject to physical or financial abuse, neglect, exploitation, or abandonment by the person appointed or anyone acting for them.
    B. Under certain circumstances, the person refusing to accept authority may report that reason to the court at which point the court shall consider whether such refusal was reasonable.
    C. A guardian or conservator may petition the court to require the person to accept the decisions of the guardian or conservator.

XXIII. Temporary Substitute Guardian or Conservator (Sec. 123)

A. A temporary substitute guardian or conservator may be appointed and will have the same powers as provided in the act or as otherwise provided in the order of appointment.
B. As long as the temporary guardian or conservator is appointed, the authority of the existing guardian or conservator is suspended.
C. Notice must be given to the ward and all interested parties as directed by the court.
D. The court may remove a temporary substitute guardian or conservator at any time at which point such person shall make any reports required by the court.

XXIV. Registration of Order; Effect (Sec. 124)

A. If a guardian had been appointed in another state for an individual, the guardian may register the guardianship order in this state in a court of an appropriate county of this state.
B. If a conservator had been appointed in another state for an individual, the guardian may register the guardianship order in this state in a court of an appropriate county of this state and in which property of the ward is located.
C. Upon registration under this section, the guardian or conservator may exercise all powers in this state that were authorized in the order except as prohibited by this act and low of this state.
D. The court may grant any relief available to enforce an order registered under this section.

Guardianship of a Minor – Article 2

I. Basis for Appointment of Guardian for Minor (Sec. 201)

A. A guardian for a minor must be appointed by the court.
B. The court may appoint a guardian for a minor if the court finds:

  1. Each parent of the minor consents;
  2. All parental rights have been terminated; or
  3. There is clear and convincing evidence that no parent of the minor is willing to exercise the powers the court is granting the guardian.

II. Petition for Appointment of Guardian for a Minor (Sec. 202)

A. Anyone interested in the welfare of the minor may petition for appointment of a guardian for the minor.
B. The petition must comply with the Uniform Child Custody Jurisdiction and Enforcement Act and include the following:

  1. The name and address of any attorney for the parents of the minor;
  2. The reason guardianship is sought and would be in the best interest of the minor
  3. The name and address of any proposed guardian and the reason the proposed guardian should be selected; and
  4. If the minor has property other than personal effects, a general statement of the minor’s property with an estimate of its value.
    C. Notice of a hearing is filed after the appointment of a guardian, along with a copy of the petition, must be given to the respondent, the guardian, and any other person the court determines.

III. Notice of Hearing for Appointment of Guardian for Minor (Sec. 203)

A. If the petition is filed under Section 202, the court must schedule a hearing and the petitioner must serve notice of the details of the hearing with a copy of the petition on each of the following who is not the petitioner:

  1. The minor if the minor will be fourteen years of age or older at the time of hearing;
  2. Each parent of the minor who can be found with reasonable diligence or, if there is none, the adult nearest in kinship who can be found with reasonable diligence;
  3. Any adult with whom the minor resides;
  4. Each individual who had primary care of the minor for at least sixty days during the six months immediately preceding the petition; and
  5. Any other person the court determines should receive service of notice.
    B. The petition must state the name and address of the attorney representing the petitioner, if any, and must fit the style of the case and before the body of the petition the following language 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.”
    C. If a petitioner is unable to serve notice, the court may appoint a guardian as litem for the minor.

IV. Attorney for Minor (Sec. 204)

A. A court may appoint an attorney to represent a minor if:

  1. Requested by the minor who is 14 years of age or older;
  2. Recommended by the guardian ad litem; or
  3. The court determines the minor needs representation.

V. Attendance and Rights at Hearing (Sec. 205)

A. The court shall require a minor who is the subject of a hearing for an appointment of a guardian to attend the hearing and allow the minor to participate unless the court determines that:
a. The minor is consistently and repeatedly refused to attend the hearing after being fully informed of the right to attend and, if the minor is at least fourteen years of age, the potential consequences of failing to do so;
b. There is no practicable way for the minor to attend the hearing;
c. The minor lacks the ability or maturity to participate meaningfully; or
d. Attendance would be harmful to the minor.
B. Unless excused by the court for the causes shown, the person proposed to be appointed as guardian for a minor shall attend a hearing.
C. Each parent of a minor who is the subject of a hearing has the right to attend the hearing

VI. Order on Appointment; Limited Guardianship for Minor (Sec. 206)

A. After a hearing, the court may appoint a guardian, dismiss the proceeding, or take other action consistent with this act or law of this state.
B. In appointing a guardian, the following apply:

  1. The court shall appoint a person nominated as guardian by a parent of the minor in a will or other record unless the court finds the appointment is contrary to the best interest of the minor.
  2. If multiple parents have nominated different persons to serve as guardian, the court shall appoint the nominee in the best interest of the minor, unless the court finds that the appointment of none of these in in the best interest of the minor.
  3. If a guardian is not appointed the court shall appoint the person nominated by the minor if the minor is fourteen years of age or older unless the court finds that this nomination is not in the best interest of the minor. In this case, the court must appoint the guardian who is in the best interest of the minor.
    C. In the interest of maintaining involvement of the minor’s parents in the minor’s life, developing self-reliance in the minor, or for other good cause, the court may create a limited guardianship by limiting the powers otherwise granted to the guardian. The court may grant additional powers or withdraw powers previously granted.
    D. The court shall state rights retained by any parent of the minor which may include contact with the minor, decision-making regarding the minor’s healthcare, education, or other matter, or access to a record regarding the minor.
    E. An order granting a guardianship for a minor must state that each parent of the minor is entitled to notice that:
  4. The minor’s residency has changed;
  5. The court has modified or limited the powers of the guardian; or
  6. The court has removed the guardian.

VII. Emergency Guardian for a Minor (Sec. 207)

A. On petition by an interested person, the court may appoint an emergency guardian if it is decided that the appointment will prevent substantial harm to the minor’s health, safety or welfare and no other person appears to have authority and willingness to act.
B. Emergency guardianship must not exceed 60 days, but can be extended for another 60 days if the court deems it necessary.
C. An emergency guardian may exercise only the powers specified in the order of appointment.
D. Except as described below, notice of the date, time, and place of a petition must be given to:

  1. The minor, if the minor is 14 years of age or older;
  2. Each parent of the minor;
  3. Any person, other than the parent, having care or custody of the minor; and
  4. Any other person the court determines.
    E. The court may appoint an emergency guardian without notice only if the court finds from affidavit or testimony that the minor’s health, safety, or welfare will be substantially harmed before a hearing after notice could be held. In such a case, notice of appointment must be given not later than 48 hours to the persons otherwise required to receive notice of the hearing. The court must hold a hearing within 5 days of any objection or contest. Additionally, the court must hold a hearing on the appropriateness no later than 5 days after appointment.
    F. Determination of the basis for appointment an emergency guardian, with or without notice, on the same basis as under Section 201.
    G. An emergency guardian may be removed at any time and must make any report required by the court.

VIII. Duties of Guardian for Minor (Sec. 208)

A. A guardian is a fiduciary with the same duties and responsibilities as a parent regarding the minor’s support, care, education, health, safety, and welfare. The guardian must act in the best interests of the minor in the exercise of reasonable care, diligence, and prudence.
B. A minor’s guardian must:

  1. Become personally acquainted with the minor and maintain sufficient contact to know and report to the court about the minor’s abilities, limitations, needs, opportunities, and physical and mental health;
  2. Take reasonable care of the minor’s personal effects and seek appointment of a conservator if necessary to protect the minor’s property;
  3. Expend funds of the minor received for the minor’s current needs for support, care, education, health, safety, and welfare;
  4. Expend funds of the minor not currently needed for the minor’s future needs, but if a conservator has been appointed may pay funds as directed by the court to the conservator;
  5. Report the condition of the minor and account for funds and property of the minor in the guardian’s possession or control as required by rule or court order;
  6. Inform the court of any change in address of the minor; and
  7. In determining what is in the minor’s best interests, take into account the minor’s preferences to the extent known or reasonably ascertainable.

IX. Powers of Guardian for Minor (Sec. 209)

A. Except as limited by the court, a guardian of a minor has the same powers as a parent.
B. Except as limited by the court, guardian for a minor may:

  1. Apply for and receive funds up to the amount set forth in Section 431 and benefits otherwise payable for the support of the minor to the minor’s parent, guardian, or custodian under a statutory system of benefits or insurance;
  2. Unless inconsistent with a court order recognizable in this state, take custody of the minor and establish the minor’s dwelling place and, on authorization of the court, establish or move the minor’s dwelling out of state;
  3. If the minor is not subject to a conservatorship, commence a proceeding or take other appropriate action to compel a person to support the minor or make payment for the minor’s benefit;
  4. Consent to health or other care; or
  5. To the extent reasonable, delegate to the minor responsibility for a decision involving the minor’s wellbeing.
    C. The court may authorize a guardian to consent to the adoption of the minor if the minor does not have a parent.
    D. A guardian may consent to the marriage of the minor if authorized by the court.

X. Removal of Guardian for Minor; Termination of Guardianship; Appointment of
Successor (Sec. 210)

A. Guardianship for a minor terminated:

  1. On the minor’s death, adoption, emancipation, attainment of majority, or on a date set by the court; or
  2. When the court finds that the standard in Section 201 for appointment is not satisfied unless the court finds that termination would be harmful to the minor and the minor’s interest in continuing the guardianship outweighs the interests of any parent in restoration of parental rights.
    B. A ward or any party may petition to terminate or modify the guardianship or to remove the guardian and appoint a successor. Notice of such petition must be given to the minor (if 14 years of age), the guardian, each parent of the minor, and any other person the court determines. No later than 30 days after appointment of a successor guardian, notice of appointment must be given those entitled to notice of the hearing.
    C. When terminating a guardianship for a minor, the court may issue an order providing for transitional arrangements to assist with a transition of custody.
    D. A removed guardian must cooperate with a successor to facilitate transition of responsibilities and protect the interests of the minor.

Guardianship of an Adult – Article 3

I. Basis for Appointment of Guardian for Adult (Sec. 301)

A. The court may appoint a guardian for an adult, after notice and hearing, if the adult is found to lack the ability to meet essential requirements for physical health, safety, or self-care because:

  1. The adult is unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services or technological assistance; or
  2. The adult is found to be a person with an intellectual disability as defined in Section 41-21-61 who is also incapable of taking care of his or her person.
    B. The court shall grant to the guardian of an adult only the powers necessitated by the limitations and needs of the adult and must enter orders that will encourage maximum self-determination and independence. The court must consider any less restrictive alternative that would meet the needs of the adult.

II. Petition for Appointment of Guardian for Adult (Sec. 302)

A. Anyone who is interested in the adult’s welfare, including the adult for whom the order is sought, may petition for appointment of a guardian.
B. The sworn petition must contain in the chancery court in the county of the adult’s residence setting forth that the adult has a mental illness or an intellectual disability, and is incapable of taking care of the adult’s person. Upon the filing of the petition, the court shall set a day, time, and place for a hearing and the adult for whom the order is sought must be summonsed not less than 5 days prior to the hearing. At the hearing all interested parties may appear and present evidence. The court shall appoint a guardian if it finds that one is needed. In such cases, costs and expenses shall be paid out of the estate of the ward. If the ward has no estate to make payment, costs and expenses are borne by the person presenting who instituted the proceeding.
C. Any petition seeking to appoint a guardian for an adult must state the name and address of the attorney representing the petitioner, if any, and must set forth under the style of the case and before the body of the petition the following:

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.

III. Notice of Hearing for Appointment of Guardian for Adult (Sec. 303)

A. On receipt of a petition under Section 302, the clerk shall set a hearing and shall cause not less not less than 5 days’ notice be given to the adult except the court, on good cause, may direct a shorter period.
B. In a proceeding under Section 302, unless the court determines the adult for whom the guardian has been appointed is competent and joins in the petition, notice of the hearing must be given to any of the following as well as any other person determined by the court:

  1. Any persons claiming to be legal custodians of the adult or co-owners or signatories of property owned by the adult;
  2. Any conservator appointed for the adult;
  3. The following persons, listed in order of preference and at least 1 relative who resides in MS other than the petitioner:
    a. Each of the spouse, children, parents, and siblings of the adult, but if none can be found, then to:
    b. One adult relative of the adult who is not the petitioner and who resides in MS if within the third degree of kinship. If no such relative is found, the court shall either designate some other appropriate person or appoint a guardian ad litem to receive notice.

Failure to give notice under this subsection does not preclude the court from appointing a guardian.

C. If the adult is entitled to any benefit, estate, or income payable through the VA, such agency must be given notice.
D. Notice of a hearing on a petition seeking an order under Section 303 filed after appointment of a guardian must be given to the respondent, the guardian, and any other person the court determines.

IV. Appointment of Guardian Ad Litem (Sec. 304)

A. The court may appoint a GAL and allow compensation out of the respondent’s estate, but only when the court considers it necessary for the protection of the respondent’s interests. A judgment from a court is not void or erroneous for failure to appoint a GAL.

V. Professional Evaluation (Sec. 305)

A. The court must conduct a hearing to determine whether a guardian is needed for the respondent. Before the hearing, a GAL may be appointed to look after the interests of the proposed ward. The GAL must be present at the hearing and present the interests of the proposed ward.
B. The judge determines the number and character of witnesses, but there must be certificates after personal examination from the following: (1) 2 licensed physicians; or (2) 1 licensed physician and 1 licensed psychologist, nurse practitioner, or physician’s assistant.
C. The personal examination may be face-to-face or via telemedicine but telemedicine examinations must include audiovisual connection by a physician licensed in MS. A nurse practitioner or physician assistant conducting an evaluation shall not be in a collaborative or supervisory relationship with the physician conducting the examination.
D. Any professional conducting the examination may be called to testify at the hearing.

VI. Rights at Hearing (Sec. 306)

A. At a hearing under Section 303, the respondent has the right to present evidence, subpoena witnesses and documents, examine witnesses, and otherwise participate in the hearing.
B. Unless excused by the court, the proposed guardian must attend the hearing.
C. A hearing under Section 303 must be closed upon request of the respondent and a showing of good cause.
D. Any person may request to participate in a hearing under Section 303. The court may grant the request, with or without a hearing, on determination that the best interest of the respondent will be served. The court may impose appropriate conditions on the person’s participation.

VII. Confidentiality of Records (Sec. 307)

A. The respondent (whether or not a guardian is appointed), the guardian, and respondent’s attorney, and persons entitled to notice under Section 303(3) are entitled to records of the guardianship proceeding.
B. Any other party may access court records upon petition to the court for good cause which petition may be granted if the court determines access is in the best interest of the respondent or furthers the public interest and does not endanger the welfare or financial interests of the respondent.
C. A GAL’s report under Section 304 or professional evaluation under Section 305 may be sealed when determined necessary by the court, but will remain available to:

  1. the court;
  2. the respondent;
  3. the petitioner, GAL and petitioner’s and respondent’s attorneys, for the purpose of the proceeding;
  4. unless the court orders otherwise, an agent appointed under a power of attorney for health care or financial affairs in which the respondent is principal; and
  5. any other person if it is in the public interest or for a purpose the court orders for good cause.

VIII. Who may be Guardian for Adult (Sec. 308)

A. Appointment of a guardian is at the discretion of the court and in the best interest of the respondent.
B. If two or more are requesting to be the guardian, the court will decide who is best qualified and in the best interests of the respondent. In making this determination, the court shall consider the person’s relationship to the respondent, the person’s skills, the expressed wishes of the respondent (including any designation in a Will, durable power of attorney, or health care directive), the extent to which the person and the respondent have similar values and preferences, and the likelihood the person will be able to perform their duties successfully.
C. The court may decline to appoint as guardian a person requesting appointment.
D. If a qualified guardian is not determined, the court may appoint the chancery clerk as the respondent’s guardian who shall serve unless a conflict of interest arises or the clerk presents circumstances where the court determines recusal is permitted.
E. A person who provides paid services to the respondent or who is employed by any such person or is the spouse, parent, or child of any such person may not be appointed as guardian unless: (1) the individual is related to the respondent by blood, marriage, or adoption; or (2) the court finds by clear and convincing evidence that the person is the best qualified person available for appointment.
F. An owner, operator, or employee of a long-term-care institution at which the respondent is receiving care may not be appointed as guardian unless related to the respondent by blood, marriage, or adoption.

IX. Order on Appointment of Guardian (Sec. 309)

A. A court order appointing a guardian for an adult must include a specific finding that clear and convincing evidence established:

  1. that the identified needs of the respondent cannot be met by a less restrictive alternative, including use of appropriate supportive services and technological assistance; and
  2. that the respondent was given proper notice of the hearing on the petition.
    B. A court order establishing a full guardianship for an adult must state the basis for granting a full guardianship and include specific findings that support the conclusion that a limited guardianship would not meet the functional needs of the ward.
    C. A court order establishing a limited guardianship for an adult must state the specific powers granted to the guardian.
    D. The court, as part of an order establishing a guardianship for an adult, must identify and include the contact information for any person that subsequently is entitled to:
  3. Notice of the rights of the adult under Section 310(b);
  4. Notice of a change in the primary dwelling of the adult;
  5. Notice that the guardian has delegated: (i) The power to manage the care of the adult; (ii) The power to make decisions about where the adult lives; (iii) The power to make major medical decisions on behalf of the adult; (iv) A power that requires court approval under Section 314; or (v) Substantially all powers of the guardian;
  6. A copy of the guardian’s plan under Section 315 and the guardian’s well-being report under Section 316;
  7. Access to court records relating to the guardianship;
  8. Notice of the death or significant change in the condition of the adult;
  9. Notice that the court has limited or modified the powers of the guardian; and
  10. Notice of the removal of the guardian.
    E. A spouse and adult children of a ward are entitled to notice under Section 303(3) unless the court determines notice would be contrary to the preferences or prior directions of the adult subject to guardianship or not in the best interest of the adult.

X. Notice of Order of Appointment; Rights (Sec. 310)

A. A guardian appointed under Section 309 shall give the ward and all other persons given notice under Section 303(3) a copy of the order of appointment, together with notice of the right to request termination or modification. The order and notice must be given not later than 14 days after the appointment.
B. Not later than 14 days after appointment of a guardian under Section 309, the guardian shall request from the court a Statement of the Rights of the Ward and shall give the statement to the ward and any other person entitled to notice under Section 303(3) or a court order. The statement must notify the ward of the right to:

  1. Seek termination or modification of the guardianship, or removal of the guardian, and choose an attorney to represent the adult in these matters;
  2. Be involved in decisions affecting the adult, including decisions about the adult’s care, dwelling, activities, or social interactions, to the extent reasonably feasible;
  3. Be involved in health-care decision-making to the extent reasonably feasible and supported in understanding the risks and benefits of health-care options to the extent reasonably feasible;
  4. Be notified at least 14 days before a change in the adult’s primary dwelling or permanent move to a nursing home, mental-health facility, or other facility that places restrictions on the individual’s ability to leave or have visitors, unless the change or move is proposed in the guardian’s plan under Section 315 or authorized by the court by specific order;
  5. Object to a change or move described above and the process for objecting;
  6. Communicate, visit, or interact with others, including receiving visitors, and making or receiving telephone calls, personal mail, or electronic communications, including through social media, unless:
    a. The guardian has been authorized by the court by specific order to restrict communications, visits, or interactions;
    b. A protective order is in effect that limits contact between the adult and a person; or
    c. The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult, and the restriction is: (i) for a period of not more than 7 business days if the person has a family or pre-existing social relationship with the adult; or (ii) for a period of not more than 60 days if the person does not have a family or pre-existing social relationship with the adult;
  7. Receive a copy of the guardian’s plan under Section 315 and the guardian’s well-being report under Section 316; and
  8. Object to the guardian’s plan or report.

XI. Emergency Guardian for Adult (Sec. 311)

A. On a petition by a person interested in an adult’s welfare or a petition filed under Section 302, the court may appoint an emergency guardian for the adult if the court finds:

  1. Appointment of an emergency guardian is likely to prevent substantial harm to the adult’s physical health, safety, or welfare;
  2. No other person appears to have authority and willingness to act in the circumstances; and
  3. There is reason to believe that a basis for appointment of a guardian under Section 301 exists.
    B. The duration of authority of an emergency guardian for an adult may not exceed 60 days, and the emergency guardian may exercise only the powers specified in the order of appointment. The emergency guardian’s authority may be extended once for not more than 60 days if the court finds that the conditions for appointment of an emergency guardian continue.
    C. Except as otherwise provided, reasonable notice of the date, time, and place of a hearing must be given to the respondent, the respondent’s attorney, and any other person the court determines.
    D. The court may appoint an emergency guardian for an adult without notice to the adult and any attorney for the adult only if the court finds from an affidavit or testimony that the respondent’s physical health, safety, or welfare will be substantially harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency guardian without giving notice, the court must give notice of the appointment not later than 48 hours after the appointment to:
  4. The respondent
  5. The respondent’s attorney;
  6. Any other person the court determines; and
  7. Hold a hearing on the appropriateness of the appointment not later than 5 days after the appointment.
    E. Appointment of an emergency guardian is not a final determination that a basis exists for appointment of a guardian under Section 301.
    F. The court may remove an emergency guardian appointed under this section at any time. The emergency guardian shall make any report the court requires.

XII. Duties of Guardian for Adult (Sec. 312)

A. A guardian for an adult is a fiduciary and, except as otherwise limited by the court, a guardian for an adult shall make decisions regarding the support, care, education, health, and welfare of the ward to the extent necessitated by the adult’s limitations.
B. A guardian for an adult promotes the self-determination of the adult and, to the extent reasonably feasible, encourages the adult to participate in decisions, act on the adult’s own behalf, and develop or regain the capacity to manage the adult’s personal affairs. In furtherance of this duty, the guardian may:

  1. Become personally acquainted with the adult and maintain sufficient contact with the adult through regular visitation and other means, and to know the adult’s abilities, limitations, needs, opportunities, and physical and mental health;
  2. To the extent reasonably feasible, identify the values and preferences of the adult and involve the adult in decisions affecting the adult, including decisions about the adult’s care, dwelling, activities, or social interactions; and
  3. Make reasonable efforts to identify and facilitate supportive relationships and services for the adult.
    C. A guardian for an adult at all times shall exercise reasonable care, diligence, and prudence when acting on behalf of or making decisions for the adult. In furtherance of this duty, the guardian shall:
  4. Take reasonable care of the personal effects, pets, and service or support animals of the adult and bring a proceeding for a conservatorship if necessary to protect the adult’s property;
  5. Expend funds and other property of the adult received by the guardian for the adult’s current needs for support, care, education, health, and welfare;
  6. Conserve any funds and other property of the adult not currently needed for the adult’s future needs, but if a conservator has been appointed for the adult, pay the funds and other property at least quarterly to the conservator for the adult’s future needs; and
  7. Monitor the quality of services, including long-term care services, provided to the adult.
    D. In making a decision for a ward, the guardian shall make the decision the guardian reasonably believes the adult would make if the adult were able unless doing so would unreasonably harm or endanger the welfare or personal or financial interests of the adult. To determine the decision the ward would make if able, the guardian shall consider the adult’s previous or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the guardian.
    E. If a guardian for an adult cannot make a decision because the guardian does not know and cannot reasonably determine the decision the adult probably would make if able, or the guardian reasonably believes the decision the adult would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult, the guardian shall act in accordance with the best interest of the adult. In determining the best interest of the adult, the guardian may consider:
  8. Information received from professionals and persons that demonstrate sufficient interest in the welfare of the adult;
  9. Other information the guardian believes the adult would have considered if the adult were able to act; and
  10. Other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.
    F. A guardian for an adult immediately must notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously removed.

XIII. Powers of Guardian for Adult (Sec. 313)

A. Except as limited by court order, a guardian for an adult may:

  1. Apply for and receive funds and benefits for the support of the adult, unless a conservator is appointed for the adult and the application or receipt is within the powers of the conservator;
  2. Unless inconsistent with a court order, establish the adult’s place of dwelling;
  3. Consent to health or other care, treatment, or service for the adult;
  4. If a conservator for the adult has not been appointed, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the adult or pay funds for the adult’s benefit;
  5. To the extent reasonable, delegate to the adult responsibility for a decision affecting the adult’s well-being; and
  6. Receive personally identifiable health-care information regarding the adult.
    B. In exercising a guardian’s power to establish the adult’s place of dwelling, the guardian must:
  7. Select a residential setting the guardian believes the adult would select if the adult were able, in accordance with the decision-making standard in Section 312(4) and (5). If the guardian does not know and cannot reasonably determine what setting the ward likely would choose if able, or if the guardian reasonably believes the decision the adult would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult, the guardian shall choose in accordance with Section 312(5) a residential setting that is consistent with the adult’s best interest;
  8. In selecting among residential settings, give priority to a residential setting in a location that will allow the adult to interact with persons important to the adult and meet the adult’s needs in the least restrictive manner reasonably feasible unless to do so would be inconsistent with the decision-making standard in Section 312(4) and (5);
  9. Establish or move the permanent place of dwelling of the adult to a nursing home, mental-health facility, or other facility that places restrictions on the adult’s ability to leave or have visitors only if: (i) The establishment or move is in the guardian’s plan under Section 315; (ii) The court authorizes the establishment or move; or (iii) The guardian gives notice of the establishment or move at least 14 days before the establishment or move to the adult and all persons entitled to notice under Section 303(3) or court order, and no objection is filed;
  10. Establish or move the place of dwelling of the adult outside this state only if consistent with the guardian’s plan and authorized by the court by specific order; and
  11. Take action that would result in the sale of or surrender of the lease to the primary dwelling of the adult only if: (i) The action is specifically included in the guardian’s plan under Section 315; (ii) The court authorizes the action by specific order; or (iii) Notice of the action was given at least 14 days before the action to the adult and all persons entitled to the notice under Section 303(3) or court order and no objection has been filed;
  12. Notify the court that the adult’s dwelling or permanent residence has become so damaged by fire, flood, or other emergency circumstance that the guardian has had to temporarily or permanently relocate the adult to another residential setting.
    C. In exercising a guardian’s power to make health-care decisions, the guardian shall:
  13. Involve the adult in decision-making to the extent reasonably feasible, including, when practicable, by encouraging and supporting the adult in understanding the risks and benefits of health-care options;
  14. Defer to a decision by an agent under an advanced healthcare directive executed by the adult and cooperate to the extent feasible with the agent making the decision; and
  15. Take into account: (i) The risks and benefits of treatment options; and (ii) The current and previous wishes and values of the adult, if known or reasonably ascertainable by the guardian.

XIV. Special Limitations on Guardian’s Power (Sec. 314)

A. Unless authorized by the court, a guardian for an adult does not have the power to revoke or amend an advanced health-care directive or power of attorney for finances. If an advanced health-care directive is in effect, unless there is a court order to the contrary, a health-care decision of an agent takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible. If a power of attorney for finances is in effect, unless there is a court order to the contrary, a decision by the agent which the agent is authorized to make under the power of attorney for finances takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible.
B. A guardian for an adult may not initiate the commitment of the adult to a mental health facility except in accordance with the state’s procedure for involuntary civil commitment.
C. A guardian for an adult may not restrict the ability of the adult to communicate, visit, or interact with others, including receiving visitors and making or receiving telephone calls, personal mail, or electronic communications, including through social media, or participating in social activities, unless:

  1. Authorized by the court by specific order;
  2. A protective order is in effect that limits contact between the adult and a person; or
  3. The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult and the restriction is: (i) For a period of not more than 7 business days if the person has a family or pre-existing social relationship with the adult; or (ii) For a period of not more than 60 days if the person does not have a family or pre-existing social relationship with the adult.

XV. Guardian’s Plan (Sec. 315)

A. If required by the court, a guardian must file a plan for the care of the adult no later than 90 days after appointment or order to file a plan. If a plan is required and there is a significant change in circumstances, or if the guardian seeks to deviate significantly from the guardian’s plan, a guardian must file with the court a revised plan no later than 90 days after the change or decision to deviate. Every plan must be based on the adult’s needs and take into account the best interest of the adult as well as the adult’s preferences, values, and prior directions, to the extent known to or reasonably ascertainable by the guardian. Along with other items determined necessary by the court, the guardian’s plan shall include:

  1. The living arrangement, services, and supports the guardian expects to arrange, facilitate, or continue for the adult;
  2. Social and educational activities the guardian expects to facilitate on behalf of the adult;
  3. Any person with whom the adult has a close personal relationship or relationship involving regular visitation and any plan the guardian has for facilitating visits with the person;
  4. The anticipated nature and frequency of the guardian’s visits and communication with the adult;
  5. Goals for the adult, including any goal related to the restoration of the adult’s rights, and how the guardian anticipates achieving the goals;
  6. Whether the adult has an existing plan and, if so, whether the guardian’s plan is consistent with the adult’s plan; and
  7. A statement or list of the amount the guardian proposes to charge for each service the guardian anticipates providing to the adult.
    B. A guardian must give reasonable notice of the filing of the guardian’s plan and a copy of the plan to the ward, the ward’s spouse, parents, children, and any other person the court determines. The notice must include a statement of the right to object to the plan and be given not later than 14 days after the filing.
    C. After the guardian’s plan is approved by the court, the guardian must provide a copy of the plan to the ward, the ward’s spouse, parents, children, and any other person the court determines.

XVI. Guardian’s Wellbeing Report; Monitoring of Guardianship (Sec. 316)

A. If there is a significant change in circumstances, or if the guardian seeks to deviate significantly from the guardian’s plan, a guardian must file with the court a report in a record regarding the condition of the adult and accounting for funds and other property in the guardian’s possession or subject to the guardian’s control within 90 days after being ordered by the court. Such report under must state:

  1. The mental, physical, and social condition of the adult;
  2. The living arrangements of the adult during the reporting period;
  3. A summary of any technological assistance, medical services, educational and vocational services, and other supports and services provided to the adult and the guardian’s opinion as to the adequacy of the adult’s care;
  4. A summary of the guardian’s visits with the adult, including the dates of the visits;
  5. Action taken on behalf of the adult;
  6. The extent to which the adult has participated in decision-making;
  7. If the adult is living in a mental health facility or living in a facility that provides the adult with health-care or other personal services, whether the guardian considers the facility’s current plan for support, care, treatment, or habilitation consistent with the adult’s preferences, values, prior directions, and best interest;
  8. Any business relation the guardian has with a person the guardian has paid or that has benefited from the property of the adult;
  9. A copy of the guardian’s most recently approved plan under Section 315 and a statement whether the guardian has deviated from the plan and, if so, how the guardian has deviated and why;
  10. Plans for future care and support of the adult;
  11. A recommendation as to the need for continued guardianship and any recommended change in the scope of the guardianship, when determined applicable by the court;
  12. Whether any co-guardian or successor guardian appointed to serve when a designated event occurs is alive and able to serve;
  13. Photographs of the adult ward and the adult ward’s living conditions, as required by the court at its discretion; and
  14. Any amounts requested for reimbursement by the guardian of fees related to the administration of the guardianship or legal fees incurred for matters related to the guardianship.
    B. The court may appoint a GAL to review a report submitted under this section or any guardian’s plan, interview the guardian or ward, or investigate any other matter involving the guardianship.
    C. Notice of the filing of a guardian’s well-being report, together with a copy of the report, must be given to the ward, the ward’s spouse, parents, children, and any other person the court determines. The notice and report must be delivered not later than 14 days after filing.
    D. The court must establish procedures for monitoring a report submitted under this section and review each report at least annually to determine whether:
  15. The report provides sufficient information to establish if the guardian has complied with the guardian’s duties;
  16. The guardianship should continue; and
  17. The guardian’s requested fees, if any, should be approved.
    E. If the court determines there is reason to believe a guardian for an adult has not complied with the guardian’s duties or the guardianship should be modified or terminated, the court:
  18. Shall notify the ward, the ward’s spouse, parents, children, and persons entitled to notice under Section 303(3) or a court order;
  19. May appoint a guardian ad litem to interview the adult or guardian or investigate any matter involving the guardianship; and
  20. May hold a hearing to consider removal of the guardian, termination of the guardianship, or a change in the powers granted to the guardian or terms of the guardianship.
    F. A guardian for an adult may petition the court for approval of a report filed under this section. The court after review may approve the report. If the court approves the report, there is a rebuttable presumption the report is accurate as to a matter adequately disclosed in the report.

XVII. Removal of Guardian for Adult; Appointment of Successor (Sec. 317)

A. Upon petition and good cause shown, a hearing may be held to consider removal of an adult’s guardian for failure to perform the guardian’s duties and to appoint a successor.
B. Notice of the petition must be given to the ward, the guardian, and any other person determined by the court.
C. A ward who seeks removal of the guardian has the right to choose an attorney for representation. The reasonable fees of this attorney shall be awarded pursuant to Section 118.
D. Not later than 10 days after appointing a successor, the court shall give notice of the appointment to the ward, the ward’s spouse, parents, children, and any person entitled to notice under a court order.

XVIII. Termination or Modification of Guardianship for Adult (Sec. 318)

A. Upon petition and for good cause, a hearing may be held to consider whether termination of the guardianship exists that a basis for appointment under Section 301 does not exist or termination would be in the best interest of the adult or for other good cause; or modification of the guardianship exists on the ground that the extent of protection or assistance granted is not appropriate or for other good cause.
B. Notice of a petition must be given to the ward, the guardian, and any other person the court determines.
C. On presentation of prima facie evidence for termination of a guardianship, the court shall order termination unless it is proven that a basis for appointment of a guardian under Section 301 exists.
D. The court shall modify the powers granted to a guardian for an adult if the powers are excessive or inadequate due to a change in the abilities or limitations of the adult, the adult’s supports, or other circumstances.
E. Unless the court otherwise orders for good cause shown, before terminating or modifying a guardianship for an adult, the court shall follow the same procedures to safeguard the rights of the adult which apply to a petition for guardianship.
F. A ward who seeks removal of the guardian has the right to choose an attorney for representation. The reasonable fees of this attorney shall be awarded pursuant to Section 118.

Conservatorship of Estate – Article 4

Article 4 of Mississippi Guardianship and Conservatorship Act
Based on Uniform Guardianship, Conservatorship and Protective Arrangements Act (2017)

Purposes:
A. Clarify the role of a Conservator
B. Improve medical evaluation for need
C. Create better accountability of conservators to the courts
D. Give courts sufficient information regarding the welfare and resources of a person under Conservatorship

I. Basis for appointment of Conservator (Sec. 401)

A. For Minor
1. If court finds by “clear and convincing evidence” that
a. Minor owns funds or property requiring management that cannot otherwise be provided, or
b. Minor’s current or future financial affairs may be at risk or hindered due to age, or
c. Appointment is necessary to provide support, care, education, health or welfare to minor
2. After considering parent’s recommendation

B. For Adult
1. If adult unable to manage property or financial affairs due to
a. Limited ability to receive and evaluate information or make or communicate decisions, even with supportive services or technology, or
b. Adult is missing, detained, incarcerated or unable to return to U.S., and
c. Appointment necessary to avoid harm to adult or waste of property, or to provide funds for support of the adult or his/her dependent, and
d. Adult’s needs cannot be met by less restrictive alternative

C. Court shall limit Conservator’s powers to extent other less restrictive alternatives will meet Ward’s needs.

II. Petition for Appointment (Sec. 402)

A. Petitioner may be an “interested party”, including one who would be adversely affected by lack of management

B. Petition must state name and address of an attorney filing for Petitioner, and contain (under the style and above the body) the prescribed due process notice legend.

C. Must be served on proposed Ward at least five (5) days prior to hearing, along with summons

III. Notice and Hearing (Sec. 403)

Notice of hearing must be given to

A. The parent(s) of a minor

B. If adult is not competent and does not join in petition, notice must also be given to:

  1. Persons claiming to be legal custodians of Ward, co-owners and signatories on Ward’s property,
    2. Living spouse, children, parents and siblings of Ward; or if none found:
    3. One adult relative of Ward who resides in Mississippi and is within third degree of kindship or, if none found:
    4. Another person or GAL appointed by court to get notice

C. Veterans’ Administration, if adult entitled to receive any benefit through VA

D. Notice of subsequent hearings must be given to respondent, the Conservator, and any other
person required by the court

IV. Order to Preserve Property (Sec. 404)

While Petition for appointment of Conservator pending court may, on preliminary hearing and without notice, issue orders to preserve property or apply for support of respondent or dependent

V. Appointment of GAL (Sec. 405)

Court may appoint GAL only if court finds necessary to protect respondent’s interests. GAL is not required. If appointed, the GAL must attend hearing

VI. Appointment of Attorney (Sec. 406)

If respondent has no attorney, court may appoint one.

VII. Professional Evaluation (Sec. 407)

Court must find need for Conservator by clear and convincing evidence

A. Proof must include written certificates, after personal examination of respondent (unless missing, detained or unable to return to U.S.) by:
1. At least two licensed physicians, or

  1. One licensed physician and one licensed psychologist, nurse practitioner or physician’s assistant. The NP or PA must not be in a collaborative or supervisory relationship with a certifying physician.

B. Personal examination may be face-to-face or by tele medicine with audio-visual connection to licensed physician in MS.

VIII. Hearing (Sec. 408)

At hearing, respondent may present evidence, subpoena witnesses and documents, examine witnesses. The proposed Conservator must attend hearing unless excused for good cause. Hearing must be closed for good cause on request of respondent.

IX. Confidentiality (Sec. 409)

A Ward or proposed Ward, the Ward’s attorney, and any person entitled to notice by court order may access the court records in the proceedings.

A. Other parties may, for good cause, petition for access to court records. Court must grant access if:
1. In respondent’s best interest, or
2. Furthers public interest, and
3. Does not endanger respondent’s welfare or financial interests

B. GAL report or professional evaluation may be sealed when determined necessary by court. A sealed record shall remain available to:
1. The court,
2. The subject individual, for any purpose
3. The petitioner, GAL, petitioner’s and respondent’s attorneys for the proceeding

  1. Respondent’s named Attorney-In-Fact in a power of attorney (unless otherwise directed by Court), and
    1. Any other person the court orders

X. Who May Be Conservator (Sec. 410)

A. For an adult, court shall determine the best qualified person for Conservator. Court shall consider:
1. Relationship to respondent
2. Person’s skills

  1. Expressed wishes to respondent (including in will, power of attorney or health-care directive
    1. Extent to which person and respondent have similar values and preferences, and
    2. Likelihood the person can perform successfully

B. If no qualified person, court may appoint the Chancery Clerk or probate administrator

C. A provider of paid services (including owner or operator of respondents LTC facility), or the employee, spouse, parent or child of a paid provider, may not be appointed unless:
1. The person is related to respondent by blood, marriage or adoption, or
2. The court finds their appointment is in respondent’s best interest

XI. Order for Appointment (Sec. 411)

A. Order appointing Conservator for a minor must include findings to support appointment and, if full conservatorship, why limited conservatorship is not sufficient

B. Order appointing Conservator for Adult must:

  1. Contain “specific finding that clear and convincing evidence has established the identified needs of the respondent cannot be met by a less restrictive alternative”, including supportive services and technological assistance, and
  2. Contains specific finding that respondent was given proper notice of hearing
  3. If full conservatorship, state the basis and findings why limited conservatorship would not meet the functional needs of respondent.
  4. If limited conservatorship, state specific property and specific powers granted to Conservator

C. Court order must give name and contact information of any person entitled to:
1. Notice of Ward’s rights per 412 (b)
2. Notice regarding sale or least of Ward’s residence
3. Notice Conservator has delegated a power per 414
4. Notice Conservator will be unable to serve for more than one month
5. Copy of the Conservator’s plan per 419 or report per 423
6. Access to court records
7. Notice of conflict between Conservator’s duties and persona interests
8. Notice of respondent’s death or change of condition
9. Notice of court limitation on powers, and
10. Notice of removal of Conservator

D. Spouse and adult children of adult Ward are entitled to notices under 411 (d) unless court finds not in best interest.

E. Each parent and adult sibling of minor Ward are entitled to 411 (e) notices

XII. Rights upon Order of Appointment (Sec. 412)

Conservator shall give copy of order appointing to Ward and all persons entitled to notice of hearing under 403.

A. Within 14 days after appointment, the court shall give statement of rights and procedures to Ward, Conservator and all persons entitled by 411 (e) court order.

B. Statement of rights must be 16-point font, in Ward’s language, and must notify Ward of right to:

  1. Seek termination, modification of conservatorship, remove Conservator, and hire attorney for those
    1. Participate in decision-making to extent feasible
    2. Receive copies of Conservator’s inventory, plan and reports, and
    3. Object to inventory, plan or report

XIII. Emergency Conservator (Sec. 413)

A. An interested person may file petition for emergency Conservator and court may appoint if finds:

  1. Appointment if likely to prevent substantial and irreparable harm to person’s property
    1. No one else has authority or willingness to act in the circumstances, and
    2. There is reason to believe Conservator is necessary.

B. Emergency Conservator may serve no longer than 60 days, and powers must be specified in order. Authority may extend an additional 60 days if court finds conditions for emergency consider remain.

C. Reasonable notice of date/time/place of hearing and anyone court directs.

D. Court may appoint EC without notices if court finds from affidavit or testimony that respondent’s property or financial interests will likely be “substantially and irreparably harmed before hearing can be held. If court appoints without notice, court must give notice within 48 hours after appointment to respondent, respondent’s attorney and any other person the court determines, and hold a hearing on appointment within 5 days after.

E. Appointment of EC is not a determination that a Conservator should be appointed under 401.

F. Court may remove, and require any type of report from, an EC at any time.

XIV. Powers requiring court approval (Sec. 414)

A. Conservator must give 403(d) notice and get prior court approval to:
1. Make gift
2. Sell, encumber, or surrender a lease to Ward’s residence.
3. Convey, release or disclaim any interest in property, including marital or co-owned
4. Exercise or release a power of appointment

  1. Create a revocable or irrevocable trust of Conservatorship assets, or revoke or amend Ward’s revocable trust.
  2. Elect an option or change beneficiary under Ward’s life insurance policy or annuity, or surrender such for cash
  3. Claim an elective share in deceased spouse’s estate or renounce or disclaim a property interest
  4. Grant a creditor priority for payment for services provided for basic living and care needs if otherwise impermissible per 428(e).
  5. Make, modify, amend or revoke Ward’s will
  6. Pay premiums on life insurance policy on life of a minor Ward purchased by a deceased parent
  7. Acquire or dispose of, sell, manage, develop, improve, exchange, partition, change character of, or abandon property
  8. Repair, alter, demolish, raise or erect a building if cost exceeds $2,500.00
  9. Subdivide or develop land, adjust boundaries or valuation of land, exchange or partition, or grant easements to public use
  10. Become lessor or lessee of property, with or without option to purchase or renew.
  11. Enter into any oil gas or minerals lease or agreement
  12. Borrow funds, with or without security
  13. Pay, contest, settle by compromise or arbitration, or release a claim of conservatorship estate
  14. Bring an action, claim or proceedings for protection of Conservator or estate

B. In approving power, court must consider:

  1. Ward’s prior or current directions, preferences, opinions, values and actions, to extent known or ascertainable
    1. Financial needs of Ward and dependents, and creditors of Ward
    2. Possible tax reduction
    3. Eligibility for government assistance
    4. Previous pattern of giving or support
    5. Existing estate plan or lack thereof
    6. Life expectancy of Ward
    7. Any other relevant factor

C. Conservator may not revoke or amend a durable financial power of attorney. Decision of Conservator takes precedence over that of Attorney-In-Fact only to extent provided by court order.

XV. Petition for Order After Appointment (Sec. 415)

A Ward or interested party may petition to

A. Require Conservator’s bond or reduce bond

B. Require an accounting

C. Direct distribution

D. Remove Conservator and appoint temporary or successor Conservator

E. Modify the appointment or powers granted, including because Ward’s abilities or supports have changed

XVI. Bond; Oath; Financial Institutions; Alternative Arrangements (Sec. 416)

A. Except for exempt financial institution, court shall require Conservator’s bond, or require alternative asset protection arrangement. Court may fully or partially waive bond if:

  1. Ward is minor and parent has waived bond in a valid will or testamentary instrument witnessed by two witnesses other than Conservator.
  2. Assets are deposited in FDIC-insured financial account subject to prior court approval for release and where depository institution receives copy of the order and files acknowledgement of receipt.
  3. Court finds bond or other arrangement is not necessary to protect Ward’s property; but cannot waive bond for paid professional non-bank Conservator.

B. Unless otherwise ordered, bond must be in amount of aggregate estate plus one year’s estimated income, less assets and real property subject to prior court order.

C. FDIC-insured institution authorized to do trust business in MS not required to give bonds.

D. Bond with prescribed condition must be filed with court. Conservator must also subscribe and oath “at or before his appointment.”

E. Financial institution with funds or deposit that complies with Act is not liable if no knowledge the representations made are incorrect.

F. Depository institution may change fee to service account.

G. Prescribed form for Acknowledgement of Receipt

XVII. Terms and requirement of bond (Sec. 417)

A. Following rules apply to bond:
1. Surety and Conservator are jointly and severally liable.

  1. Surety submits to personal jurisdiction of issuing court. Notice of proceeding on bond must be given to surety.
    1. Proceeding may be brought against surety for breach of obligation on bond.
    2. Proceedings may be brought on bond until surety liability is exhausted.

B. Surety may not be sued id action against Conservator barred.

C. Surety must immediately give notice to Conservator and attorney if bond not renewed.

XVIII. Duties of Conservator (Sec. 418)

A. Conservator is fiduciary with duties of prudence and loyalty to Ward.

B. Conservator must promote self-determination of Ward, and encourage Ward to participate on own behalf and develop or regain capacity to manage

C. In making decision, Conservator must make decision s/he believes Ward would make, unless it would fail to preserve resources needed for Ward’s well-being. Conservator must consider Ward’s directions, preferences, opinions, values and actions to extent known.

D. If Conservator does not know Ward’s preferences or directions, or if believes the Ward’s decision would fail to preserve resources for Ward’s well-being, Conservator must act in wards best interest, and must consider:

  1. Information from professionals and persons interested in Ward’s welfare.
  2. Information Conservator believes Ward would have considered.
  3. Other reasonable circumstances, including consequences for others.

E. Where non-FDIC insured investments permitted in court’s order, Conservator must act as prudent investor by considering:
1. Circumstances of Ward and estate
2. General economic conditions
3. Possible effects of inflation or deflation
4. Expected tax consequences
5. Role of each investment or action in relation to overall estate
6. Expected total return from income and gains
7. Need for liquidity, regular income, and preservation of capital, and
8. Special relationships of specific property to Ward.

F. Propriety of investment and management governed by circumstances when Conservator decides to act, not by hindsight.

G. Conservator must make reasonable effort to verify facts relevant to investment and
management.

H. Conservator who has, or is named on basis of, special skills must use those special skills.

I. In investing, selecting property for distribution, and acting on a power of revocation or withdrawal for Ward’s benefit, Conservator must consider Ward’s estate plan and examine Ward’s will or other donative documents.

J. Conservator must maintain insurance on Ward’s property unless insufficient funds or court finds:
1. Property lacks sufficient equity or
2. Insuring would unreasonably dissipate the estate

K. Conservator has authority over Ward’s digital assets as allowed in RUFADAA (MCA 21-23-101 et seq.)

L. Conservator for adult must notify court if Ward’s capacity to manage changes.

XIX. Conservator’s Plan. (Sec. 419)

A. Within 90 days after initial appointment or a change in circumstances, Conservator must file a “plan for investing, protecting, managing, expending and distributing” conservatorship assets. The plan must take into account Ward’s best interest and preferences, values and prior directions to extent known. The Plan must include:

  1. A budget with projected expenses and resources, and an estimate of total anticipated Conservator’s fees per year and statement or list of services the Conservator expects to provide and fees for each.
    1. How the Conservator will involve the Ward in management decisions
  2. Steps the Conservator plans to take to develop and restore Ward’s ability to manage, and
    1. An estimate of duration of the conservatorship

B. Conservator must give reasonable notice of filing of, and a copy of, the plan to Ward and any person entitled to 411(e) notice. Notice must advise of right to object to the plan and be given within 14 days after filing.

C. Ward and others noticed may object to the plan

D. Court must review plan and consider any objections and the Conservator’s duties in determining whether to approve. Court may not approve the plan until 30 days after filed.

E. After court approves the plan, Conservator must give a copy to Ward and others noticed

XX. Inventory; records (Sec. 420)

A. Within 90 days after appointment, Conservator must file a detailed inventory and oath or affirmation that it is believed to be complete and accurate

B. Within 14 days after filing, Conservator must give notice of filing inventory to the Ward and any other person entitled to notice

C. Conservator must keep records of actions and make available for examination on request of Ward, guardian or other persons permitted by court

XXI. Powers not requiring court approval (Sec. 421)

A. Unless limited by court order or Section 414, Conservator has all powers in this section.

B. Court may authorize Conservator to execute powers not listed in section 414, without prior court approval, the following powers:

  1. Collect, hold and retain property, including in another state
  2. Receive additions to the estate
  3. Continue or participate in operation of a business or other enterprise
  4. Acquire an undivided interest in property in which Conservator owns an interest
  5. Acquire or dispose of personal property
  6. Continue to invest assets
  7. Deposit funds in a financial institution, including one operated by Conservator
  8. Grant, accept or exercise options for disposition or acquisition of property
  9. Vote securities, in person or by proxy
  10. Pay a call, assessment or other charge against a security
  11. Sell or exercise a stock subscription or conversion right
  12. Consent to reorganization, consolidation, merger, dissolution or liquidation of a corporation or other enterprise
  13. Hold a security in name of a nominee without disclosing the conservatorship
  14. Insuring the estate against loss and the Conservator against liability
  15. Advance funds for protection of the estate or Ward, and expenses, losses and liability incurred in administration of the estate
  16. Pay tax, assessment and compensation of the Conservator or guardian or expenses incurred in administration or protection of the estate
  17. Make a payment to the Ward or a dependent, directly or to distributee’s
    a. Guardian
    b. Custodian under Mississippi Uniform Transfers to Minors Act (MCA 91-20-1 et seq.)
    c. Relative or person with physical custody
  18. Defend any action or claim for protection of the estate
  19. Structure Ward’s finances, including gifts in keeping with Ward’s values and preferences, to establish eligibility for public benefits
  20. Execute and deliver instruments to facilitate exercise of any power

XXII. Distribution from Conservatorship estate (Sec. 422)

Unless limited by Section 414, court order or the Plan, Conservator may expend income or principal for “support, care, education, health, or welfare” of Ward or a dependent, including child support, without specific court authorization, per following rules:

A. Conservator shall consider a recommendation of Ward’s guardian and, if a minor, Ward’s parent(s). Court shall determine whether an expense for minor Ward should be borne by Ward’s estate or parents.

B. Conservator acting in compliance with duties under Section 418 is not liable for complying with a request for expenditure under preceding section unless Conservator knows it is not in Ward’s best interest.

C. In making a distribution or expenditure, Conservator must consider:

  1. Size of the estate, estimated duration of the conservatorship, and likelihood the Ward will become able to manage in the future
    1. Accustomed standard of living of the Ward and a dependent
    2. Other funds or sources used for support of Ward, and
    3. Ward’s preferences, values and prior directions.

D. Expenditures of funds may be made to reimburse the Conservator or in advance to a vendor or dependent

XXIII. Conservator’s Report and Accounting (Sec. 423)

A. Conservator must file a report, and a petition for the court to approve the report, annually unless court directs otherwise, and upon resignation, removal or termination.

B. The report must state or contain:

  1. An accounting that lists property included in estate, receipts, disbursements and liabilities during the accounting period.
    1. List of services provided to Ward
    2. A statement whether, how and why the Conservator has deviated from the Plan
  2. A recommendation as to the need for continued conservatorship and any recommended change in scope
  3. Anything of “more than de minimis value” which the Conservator, anyone residing with the Conservator, the spouse, child, sibling or parent of Conservator has received from vender of goods or services to the Ward
  4. Any business relationship the Conservator has with a person who was paid or benefited from Ward’s property

C. Court may request copies of the most recent financial statements for status of investment, bank and mortgage accounts or debts of Ward; all but last 4 digits of Ward’s SSN must be redacted

D. Court may appoint a GAL to review the Report, interview the Ward or Conservator, or investigate any matter.

E. Reasonable notice of filing of the report and a copy of the report must be given to the Ward and persons entitled to notice under 414, within 14 days after filing

F. Court may establish procedures for monitoring a report and annual review of each report, and must consider whether:

  1. The report provides sufficient information to determine the Conservator has complied with duties
    1. The Conservator should continue, and
    2. The Conservator’s requested fee should be paid.

G. If the court finds the Conservator should not continue, the court:

  1. Shall notify the Ward, the Conservator and any person entitled to notice under 414 or court order
    1. May require additional information from the Conservator
    2. May appoint a GAL to interview or investigate, and
  2. May hold a hearing to consider removal of Conservator, termination of the conservatorship, or change in powers of the Conservator

H. Court may hold a hearing to determine whether to adjust Conservator’s fee

I. An order may be entered, after notice and hearing, approving the report

J. Conservator may seek an order, after notice and hearing, approving a report that discharges the Conservator

K. When funds and personal property of the Ward do not exceed $10,000 with no prospect of additional funds to be received, or where only funds to be received are from DHS for the benefit of the Ward, the court may find it in best interest to dispense with annual accountings, except for final accounting.

XXIV. Attempted Transfer of property by Ward. (Sec. 424)

A. Conservatorship property is not transferable or assignable by the Ward, and is not subject to levy, garnishment or claims against Ward unless allowed under Section 427.

B. Contract made by the Ward after such right has been delegated to another by the court is void against the Ward and Ward’s property, but is enforceable against other party

C. Third party that deals with a Ward regarding conservatorship property is entitled to other protections of law

XXV. Transaction involving conflict of interest. (Sec. 425)

A transaction (such as a sale or encumbrance) involving estate property, by the Conservator, his/her spouse, descendant, sibling, attorney, one who resides with the Conservator, or a corporation or enterprise in which Conservator has a substantial beneficial interest, which transaction is affected by a substantial conflict of interest, is voidable unless authorized by court order after notice to persons entitled to notice

XXVI. Protection of persons dealing with Conservator. (Sec. 426)

A. Persons who deal with the Conservator in good faith and for value, other than in transactions requiring court order under Section 414, are protected as though the Conservator acted properly. Restrictions on authority in letters of conservatorship or otherwise provided by law are effective as to the person. Persons paying or delivering property to a Conservator are not required to inquire as to proper application of such property.

B. This protection extends to procedural irregularity or jurisdictional defect in the proceeding leading to issuance of letters of conservatorship and does not substitute for other legal protections in the laws of this state regarding commercial and security transactions

XXVII. Presentation and allowance of claims. (Sec. 427)

A. The Conservator may pay or secure a claim against the Ward or estate assets arising before or during the conservatorship, upon presentation and allowance of a claim under subsection F. Claimants may present a claim by filing with the court in a form acceptable to the court, and sending or delivering a copy to the Conservator.

B. Within 90 days after presentation of a claim, and any time prior to payment (but not after court order allowing payment), the Conservator may disallow a claim in whole or in part by delivering to the claimant a record of disallowance. Presentation of a claim tolls a statute of limitations running on the claim until 30 days after disallowance.

C. A claimant may petition for payment any time prior to running of a statute of limitations, and the court may order allowance and payment or security by the estate. A claimant in any proceeding brought before or after appointment of the Conservator must give notice thereof to the Conservator if it could result in a claim against estate assets.

D. If the estate is likely to be exhausted before all claims are paid, the Conservator shall comply with provisions of law pertaining to distribution of assets of insolvent estates.

E. When claims are established and the estate assets ascertained, the court shall determine pro rata shares in the following order of preference:
1. Administration costs and expenses
2. Claims of federal or state government with priority under other law

  1. Claims incurred by Conservator for “support, care, education, health or welfare” of the Ward or Ward’s dependent
    1. Claims arising before the conservatorship, and
    2. All other claims.

F. Preference may not be given over another claim of the same class. A claim due may not be preferred over a claim not yet due unless:

  1. Doing so would leave the estate without sufficient funds for Ward’s support and health care, and
    1. The court authorizes the preference under Section 414(a)(8).

G. If estate assets are sufficient to meet all claims, the court may authorize granting of a security interest in estate assets to pay a claim at a future date.

XXVIII. Personal liability of Conservator. (Sec. 428)

A. Conservator is not personally liable on a contract made as Conservator unless the Conservator fails to disclose his/her representative capacity prior to or in the contract.

B. Conservator may be personally liable for control of property or an act or omission during administration only if s/he is personally grossly negligent or in breach of fiduciary duty.

C. A claim based on contract made by a Conservator, or an obligation or tort arising during administration may be asserted against the estate in an action against the Conservator in a fiduciary capacity, whether or not the Conservator is personally liable.

D. Question of personal or fiduciary liability may be determined in an action for accounting, surcharge, indemnification or other appropriate proceeding.

XXIX. Removal of Conservator; appointment of successor. (Sec. 429)

A. The court may remove and replace a Conservator for good cause.

B. The court must hold a hearing on possible removal upon:

  1. Petition by the Ward, Conservator or interested person reasonably supporting such removal and replacement, but not if similar petition was filed within last 6 months
  2. Communication from the Ward, Conservator or interested person that supports removal, or
    1. Determination by court that a hearing would be in Ward’s best interest.

C. Notice of petition must be given to the Ward, Conservator and others the court may determine.

D. A Ward seeking to remove a Conservator has the right to choose an attorney. If none, the court may appoint an attorney and approve reasonable attorney’s fee.

E. The court must follow the priorities of Section 410 in selecting a successor Conservator.

XXX. Termination or modification of conservatorship. (Sec. 430)

Conservatorship must be terminated in compliance with Section 423 when a minor becomes adult, emancipated or dies. Conservatorship may be continued into adulthood when court finds the Ward would qualify for conservatorship as an adult.

A. A Ward, Conservator or interested person may petition for:

  1. Termination of conservatorship based on no grounds for continuation or best interest of Ward, or
    1. Modification of conservatorship based on grounds for reduced scope of protection

B. Court may hold a hearing on termination or modification on:

  1. Petition supporting reasonable belief that termination or modification would be appropriate
  2. Communication from the Ward, Conservator or interested person that supports a reasonable belief that termination or modification is appropriate, such as due to change in Ward’s functional needs
  3. A report from a guardian or Conservator that supports a reasonable belief that termination or modification is appropriate, such as due to change in Ward’s functional needs, or
    1. Determination by the court that a hearing would be in Ward’s best interest

D. Court must order termination upon presentation of prima facie evidence supporting it

E. Court must modify Conservator’s powers if excessive or insufficient based on Ward’s abilities or limitations, other supports and circumstances

F. Court must follow same procedures to safeguard rights in termination as for appointment, unless otherwise ordered for good cause

G. Ward who seeks to terminate or modify conservatorship has the right to choose an attorney. If none, the court may appoint an attorney and approve reasonable attorney’s fee.

H. Upon termination other than by death of Ward, estate assets pass to the Ward, and the order must direct Conservator to file a final report and petition for discharge.

I. If Ward dies testate, the Conservator must deliver the will to the personal representative and certify such delivery. If Ward dies intestate, Section 91-7-68 governs.

XXXI. Transfer for benefit of minor without appointment of Conservator. (Sec. 431)

A. A person without knowledge of a conservatorship of a minor or petition for same may transfer up to $25,000 per year to:
1. A person with custody and with whom the minor resides,
2. The minor’s guardian,
3. A custodian under the Uniform Transfers to Minors Act, Section 91-20-1 et seq.

  1. A financial institution account or certificate in minor’s name and shall give notice to the minor, or
    1. An ABLE account.

B. One who transfers funds under such circumstances is not required to see to proper application of the funds.

C. One who receives funds or property for a minor may only use them for the minor’s support, education, care, health or welfare, including for reimbursement of necessary expenses by such person. Funds not use must be transferred to the minor upon age of majority or emancipation.

D. Contributions to and disbursements from an ABLE account are governed by the applicable ABLE act.

Big Changes Proposed for Probate

January 7, 2019 § 2 Comments

Secretary of State Hoseman convened a group to study and propose revisions to our estate and other fiduciary laws. Here is the summary provided by his office generally outlining the proposed statutory changes:

Revisions to Title 91 of the Mississippi Code governing estates and trusts will update statutory language and processes to provide clarity and ease of use for Mississippians. New statutes will be incorporated recognizing nonprobate transfers, ancillary and foreign administration, abatement, disclaimer of property interests, and revocation of probate and nonprobate transfers following divorce.

• Mississippi Real Property Transfer on Death Act “Transfer on Death Deed”: Enact a new statute to provide for nonprobate transfers of real property at death.

Example: John prepares before his death a transfer on death deed leaving his home to his two children so that his heirs may avoid probating the estate for purposes of transferring ownership of the family home. John’s transfer on death deed must be recorded, is only effective after his death, and is revocable at any time before his death.

• The Uniform Estate Tax Apportionment Act of 2003: Repeal Sections 27-10-1 through 27-10-25, the Uniform Estate Apportionment Act, and replace with the updated 2003 Uniform Estate Tax Apportionment Act under Title 91. The version of Uniform Estate Tax Apportionment Act previously adopted in Mississippi was originally drafted in the 1960s. In the last 50 years or so, people are using a revocable trust as a substitute for will and are using other forms of ownership to transfer assets at death. The federal estate tax provisions have also been substantially revised. The current version of the Uniform Estate Tax Apportionment Act recognizes these changes and provides detailed provisions for the apportionment of estate taxes when a decedent’s will or revocable trust does not provide for apportionment of estate taxes.

Examples: John executed a revocable trust during his lifetime. The revocable trust includes all of the provisions for the disposition of John’s property and provisions for the apportionment of estate taxes, if any, to various property. John’s will provides that all of his probate property is to be distributed to his revocable trust after his death. Unlike the previous version of the Uniform Estate Tax Apportionment Act, the more recent version of the Act makes it clear that the apportionment of estate taxes under the terms of the revocable trust will be respected.

John died without a surviving spouse. John’s executor filed a federal estate tax return reflecting a $1,000,000 federal estate tax liability. John’s will did not have provisions stating which assets should be used to satisfy the federal estate tax liability. Fifty percent (50%) of the assets includible in the taxable estate were owned by John at his death (“Probate Assets”) and Fifty Percent (50%) passed outside of probate by beneficiary designation, rights of survivorship or were held in his revocable trust (“Nonprobate Assets”). Generally, under the Uniform Estate Tax Apportionment Act, $500,000 of the estate taxes will be apportioned ratably to the Probate Assets and $500,000 ratably to the Nonprobate Assets. The Uniform Estate Tax Apportionment Act has provisions for payment of the estate tax and the process for collecting the apportioned estate taxes from the persons receiving the Nonprobate Assets.

• Affidavit of Successor: Amend Section 91-7-322, commonly referred to as the Small Estate Affidavit, to clarify the definition of successor and to increase the value of the probate estate to $100,000. This statute allows the transfer of personal property without the necessity of probate when the decedent’s probate estate is $100,000 or less.

Example: John dies leaving an estate, not including real estate or exempt property, which totals $60,000. Thirty days after John’s death, his spouse, Jane, would be able to present an affidavit to anyone possessing John’s personal property or owing a debt to him and have the property or payment of a debt transferred to Jane without the necessity of a probate proceeding.

• Fiduciary Transfer of Negotiable Paper: Amend Section 91-7-255 to permit a fiduciary to negotiate paper belonging to the estate without court approval and to update the standard of care applicable to the fiduciary. Often a fiduciary may need to enter into a transaction quickly to prevent a decline in value of stocks, bonds and other investments or to diversify investments when investments are too concentrated in a single investment.

Example: John’s son, Jim, becomes the court-appointed executor. Through his appointment Jim is granted the ability to trade or sell stocks, transfer any notes, convert certificates deposit and make other financial decisions necessary for the preservation of the probate estate. Jim is held to the same standard of care applicable to a trustee.

• Property Not to be Removed from State: Repeal Section 91-7-257 as this Section is no longer applicable. Often a will of a Mississippi resident designates a child or children living in another state as executor. In order to preserve or protect assets belonging to an estate, such as jewelry, silver, car, personal effects and other items of value from the decedent’s personal residence, an executor may need to remove the property for safekeeping during the administration of the estate.

• Foreign Personal Representatives and Ancillary Administration: Repeal Section 91-7-259, Foreign Fiduciaries, Lawsuits and Debts, and enact Foreign Personal Representatives and Ancillary Administration to provide a clear process for foreign personal representatives and ancillary administration. This amendment will bring Mississippi current with every other State in the nation.

Example: John is a resident of Alabama and dies in Alabama; however, John owns property in Mississippi. Ancillary administration law provides a clear process for John’s executor of his Alabama estate to collect and distribute the Mississippi property since he has already been appointed in another jurisdiction’s court of law. John’s executor will file in Mississippi the admitted will and his letters testamentary or letters of administration to begin the ancillary administration in Mississippi.

• Abatement: Enact a new statute to provide a statutory order of abatement when devises and bequests of the decedent must be used in order to settle the decedent’s debts, and no order has been provided in the will. Sections 91-7-91, 91-7-191, 91-7-195, 91-7-199, 91-7-261, and 91-7-271 will be amended to conform to the new enactment.

Example 1: John dies with a will that leaves his hunting land worth $100,000 to Jim and $100,000 cash to Jane. The residue of his estate ($50,000) is left to Jim and Jane equally. A creditor has a claim for $150,000. Unless John’s will provides otherwise, under current law, Jim gets the $100,000 hunting land, and Jane receives nothing. There is no residue to divide between Jane and Jim. Under the proposed bill, the result is the same, because Jane’s general bequest abates prior to Jim’s specific devise.

Example 2: John dies with a will that leaves his home worth $100,000 to his daughter, Jane; his hunting land worth $50,000 to his son, Jim; $5,000 to each of his two nieces; and his remaining property worth $40,000 equally to Jane and Jim. A creditor has a claim for $50,000. Unless John’s will provides otherwise, under current law, Jane gets the $100,000 home, Jim gets the $50,000 hunting land, and the nieces receive nothing. There is no residue to divide between Jane and Jim. Under the proposed bill, the result is the same because residuary and general legacies abate before specific bequests and devises.

Example 3: John dies with a will that leaves his hunting land worth $100,000 to Jim and his stock in his business worth $100,000 to Jane. The residue of his estate ($100,000) is left to Jim and Jane equally. A creditor has a claim for $150,000. Unless John’s will provides otherwise, under current law, Jim gets the $100,000 hunting land, and Jane receives $50,000. There is no residue to divide between Jane and Jim. Under the proposed bill, both Jim’s and Jane’s specific legacy would abate equally without regard to the distinction between real estate and personal property, so they would both receive $75,000.00.

• Creditor Rights With Respect to Beneficial Interests in Trusts: Repeal the Family Trust Preservation Act (Sections 91-9-501 through 91-9-511) and enact Article 5 of the Uniform Trust Code so that the language and defined terms are the same as currently provided for in the Mississippi Trust Code. Some specific new issues are addressed as follows:

Example: John sets up a revocable trust. Under Article 5 of the Uniform Trust Code, John’s assets in the revocable trust would be subject to the claims of creditors.

Example: Jane sets up a life insurance trust on her life for her son with withdrawal rights. Jane’s payments to the trust are not subject to her son’s creditors unless the son decides to withdraw the money and compromise the life insurance policy. The fact that the son does not contribute to the trust does not mean it’s self-settled.

• Muniment of Title: Amend Section 91-5-35 to allow a will to be admitted to probate as a muniment of title by filing a signed and sworn petition signed by either the personal representative or the spouse and beneficiaries of real property and to increase the value of the probate estate to $100,000. This statute allows the transfer of real property without the necessity of probate when the decedent’s probate estate is $100,000 or less.

Example: Jane dies leaving a will devising real property located in Mississippi to her son, Jim. If Jane’s estate, not including real estate or exempt property, totals $100,000 or less, the transfer of property is the only reason the will would need to be probated, and all Jane’s debts have been satisfied, Jim may file a sworn petition in chancery court asking the court to recognize the will as valid solely to transfer the real property without
the necessity of probate.

• Vouchers, 3 Appraisers, and Inventory: Remove requirements regarding vouchers and an appointment of three appraisers when conducting an inventory. Provide that an inventory may not be required if waived in the will. Amend Sections 91-7-93, 91-7-95, 91-7-109, 91-7-117, 91-7-135, 91-7-141, 91-7-277, 91-7-291, and 91-7-297. Repeals 91- 7-111, 91-7-113, 91-7-115, 91-7-137, 91-7-139, 91-7-279.

• Uniform Disclaimer of Property Interest Act: Repeal Sections 89-21-1 through 89-21-17) the prior version of the Uniform Disclaimer of Property Interests Act adopted in Mississippi in 1994 and replace with the current version as last revised or amended in 2010. The more recent version of the Uniform Disclaimer of Property Interests Act addresses not only disclaimers of property but also disclaimers of powers over property and disclaimers of powers held in a fiduciary capacity. It also addresses different types of interests in property, including interests in jointly-held property. The provisions of the more recent version of the Uniform Disclaimer of Property Interests Act provide much more detail on the form of the disclaimer, delivery of the disclaimer and the effect of the disclaimer.

• Example: In John’s will, John designates his brother, Bob, as executor of his estate and trustee of a trust for his surviving spouse. The terms of the testamentary trust provide that John’s wife is entitled to all of the income of the trust during her lifetime. Bob is also given the power, in his discretion, to invade principal for the benefit of the surviving spouse and John’s descendants. The power to make distributions to the descendants
would prevent the trust from qualifying for the federal estate tax marital deduction. In the interest of all of the beneficiaries of the trust and to qualify the trust for the federal estate tax marital deduction, Bob can disclaim the power to make discretionary distributions to John’s descendants during the lifetime of John’s surviving spouse.

• Revocation by Divorce: Enact new statute to provide for automatic revocation of probate and nonprobate transfers upon divorce.

Example: John provided for his wife, Jane, in his will. John also named Jane as the beneficiary of his IRA and life insurance policies. John and Jane divorce, but John forgets to remove Jane from his IRA and life insurance policies. Under this law, all provisions for a former spouse in probate and nonprobate transfers, like a will, trust, IRA, insurance, payable on death account, etc. will be automatically revoked.

Reprise: Checklist for Closing an Estate

October 20, 2017 § Leave a comment

Reprise replays posts from prior years that you may find useful today.

This one should be in every one of your estate files.

CHECKLIST FOR CLOSING AN ESTATE

September 27, 2010 § 19 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed.
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

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