GAP Act: Section 125

September 10, 2019 § Leave a comment

A good starting point in looking at the GAP Act is with the most frequently asked questions that I have heard about the new law. Those questions are: How does the GAP Act affect guardianships and conservatorships that were opened before January 1, 2020?; and Can I opt out of GAP Act coverage?

Those questions are answered in Section 125 of the GAP Act, which is entitled “Transition Provisions.”

Here is Section 125 verbatim:

Section 125. Transition provisions. Except as otherwise provided in this chapter:

(a) This chapter applies to all guardianship and conservatorship proceedings commenced on or after January 1, 2020;

(b) This chapter applies to all guardianship and conservatorship proceedings commenced before January 1, 2020, unless the court finds that application of a particular provision of this chapter would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties, in which case the particular provision of this chapter does not apply and the superseded law applies; and

(c) An act done before January 1, 2020, is not affected by this act.

Comments:

  • “Proceedings commenced” means that if you file an action to create a guardianship or conservatorship on or after January 1, 2020, your action is governed by the GAP Act. That’s because MRCP 3(a) provides that “A civil action is commenced by filing a complaint with the court.” There is no exception or “opting out” for an action commenced on or after January 1, 2020.
  • But, if you file to create a guardianship or conservatorship under current law before January 1, 2020, and the case is not presented until after January 1, 2020, there is a way that you could choose which law will apply. If you do not take other steps, your case will be under the GAP Act, and you will likely have to re-issue process and amend pleadings to comply with GAP. Or you can get the judge to enter an order exempting your case, as spelled out below.
  • If you have an existing guardianship or conservatorship, or you are in the situation in the previous paragraph, and you want to continue under the superseded law, I would suggest that you file a motion claiming that the application of Section 125 “would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties,” and obtain a court order that the case will proceed under the superseded statutes until further order of the court. In the alternative you can ask the judge to rule that application of a particular provision, such as the enhanced notice requirements, or some other particular provision will make it harder to administer and cause more expense. The ruling on that motion will be at the chancellor’s discretion, which varies from judge to judge. Don’t assume it would be automatic.
  • DON’T Discard your current Title 93, volume 20 of the Code! You may need those provisions after the GAP Act comes online. If you’re operating from an online code, you might want to print out a copy of the current Title 93, Chapter 13 just to be sure you have something to go back to.

The GAP Act: Introduction

September 4, 2019 § 1 Comment

Effective January 1, 2020, every statute now existing in Title 93, Chapter 13 will be repealed and replaced by SB 2828, known as the GAP Act. GAP is an acronym for “guard and protect” children and vulnerable adults.

The act is a product of a commission initiated in 2017 and headed by Justice Dawn Beam of the MSSC. The commission produced the content that was introduced in the legislature as SB 2828 in 2018, and was signed into law by Governor Bryant in 2019. The effective date was set far enough in the future to give lawyers and judges time to acquaint themselves with the new law.

All guardianships and conservatorships opened after January 1, 2010, must comply with the act. There are four Articles of the act: Article 1 consists of general provisions; Article 2 deals with guardianship of the minor; Article 3 addresses guardianship of the adult; and Article 4 is for conservatorships.

As for pre-Act guardianships and conservatorships, Section 125 provides that GAP applies to them also unless the chancellor finds that application of a particular provision would “substantially interfere” with the guardianship or prejudice the rights of the parties, in which case that provision does not apply and the superseded law applies. So don’t toss out your Title 93 when the new code arrives.

One of the biggest changes is that the term ”Guardian” will mean the person responsible for the personal affairs of the ward – what we now call a “guardian of the person.  A guardian may have a minor or adult ward. “Conservator” will mean the person responsible for the financial affairs of the ward. A conservator may have a minor or adult ward.

Another big change is heightened notice requirements. More people will have to be given notice of the proceeding, and some of those may be allowed to participate. Notices will have to include certain language, as will pleadings.

Hearings are mandated. The court is required to make specific findings.

The MSSC will publish forms for pleadings, process, and even court orders. The forms you have now will not work under the GAP Act.

I will publish a series of posts giving you some insight into what is coming. In the meanwhile, I urge you to read the act and become conversant with it. This blog is no substitute for your own mastery of the subject, which will require that you read and digest its content.

GAP Act is Coming

August 26, 2019 § 1 Comment

On January 1, 2020, every one of the now-existing guardianship and conservatorship statutes will be repealed. That means that the entire Title 93, Chapter 13, will no longer exist in its present form.

Replacing the present statutes will be the Mississippi Guardianship and Conservatorship Act (commonly known as the “Guard and Protect” (GAP) Act”). It was Senate Bill 2828 in the 2019 Mississippi legislature. You can access a copy of the 144-page bill at this link. All guardianships and conservatorships opened on or after January 1, 2020, will be under the new law.

Beginning next month I will do a series of posts summarizing the act for you.

In the meantime, I urge you to read the entire bill. Better yet, print out a copy and make notes or highlight.

It’s an understatement to say that this new legislation changes the way we do business in guardianships and conservatorships. Your existing forms, pleadings, and practice will no longer work under the GAP Act.

Lawyers who prepare in advance will be successful. Those who do not will likely keep returning to the drawing board (at their own expense) until they get it right. A good way to help get prepared is to attend a GAP Act CLE program in your area. I know of several being planned around the state. Keep your eyes open for notices of programs.

More on Moving the Ward

November 20, 2017 § 2 Comments

In a previous post I talked about the measures you need to take when you are moving a ward in a guardianship or conservatorship from Mississippi to another state. That earlier post is at this link.

The statute I cited in that earlier post is still on the books, but now there is a uniform law that provides a modern procedure recognized in many other jurisdictions.

In 2014, Mississippi adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (MCA § 93-14-101, et seq.), which establishes procedures recognized among the participating states for transfer of guardianships, protective proceedings, registration of orders from other states, and communication between courts. There is even a provision for emergency, temporary jurisdiction over a respondent from another state who is in this state at the time of the emergency.

Situations involving conservatorships and adult guardianships are becoming more frequent, and the need to move wards to the state where the children are now located is more and more prevalent. This chapter will help you do that.

_______________________

Thanks to Attorney Mark Scarborough

 

 

Moving the Ward

October 17, 2017 § 3 Comments

The guardian whom you represent drops by to pay on her bill and nonchalantly reports that “We had to move momma to a rest home over in Lisman, Alabama. We think she’ll be happier there.” After she departs, you begin musing whether something should have been filed in court.

Well, you would do well to study MCA 93-13-63. It reads, in its entirety:

If a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect; but the guardian shall first give a bond, with two sufficient sureties residing in this state, in the full value of the ward’s personal estate, conditioned that he will qualify as guardian of the ward in the state or country to which he intends removing, and will there present and file in the proper court a complete inventory of his ward’s property and effects; and, on failure to comply with the condition, the bond may be put in suit for the benefit of the ward.

My, that’s a lot to do. First, a petition must be filed seeking authority. Second an accounting must be filed. Third, the guardian must post bond with two Mississippi sureties in the value of the ward’s estate conditioned on his qualification as guardian in the state to which the ward is to be moved, and on condition that he will file a complete inventory of the ward’s property and effects in that court. And, on failure to comply, the bond “may be put in suit” for benefit of the ward.

So, yes, there are plenty of procedural hoops through which you and the ward must cavort in order to achieve your aim. I’m not aware of a case on point, but I would think that failure of the guardian to comply with the statute might well put her original bond in jeopardy. And if she entered into a contract with the Alabama facility without approval of the court, the court could assess the expense against her. Who was providing the guardian with legal advice while all of this was happening?

Change the scenario above to a movement of the ward from Quitman, in Clarke County, to Brandon, in Rankin County, without prior court approval. Any problem with that?

MCA 93-13-61 tells what is supposed to be done:

If a guardian desire to remove the person and/or personal property of his ward to any county other than that in which he was appointed guardian, he may, on petition, be allowed to do so, if the court deem it proper, and it may make an order to that effect, on condition that the guardian will qualify in the county to which he removes, or it may allow the removal and retain jurisdiction over the guardianship. The court of the county to which he removes, on production of the order authorizing the removal, may appoint him guardian. And when he shall produce to the court which originally appointed him the letters of guardianship from the court of the county to which he has removed, and make a settlement of his guardianship accounts, he may be discharged from his original bond; and thereafter he shall present his inventories and accounts to and be under the control of the court of the county to which he has removed. And the clerk of the court in which the settlement was made shall transmit a certified copy of the settlement, at the cost of the guardian, to the clerk of the court in which he was last appointed.

First, file a petition and obtain an order. The order can direct removal of the case to the destination county, or the original court can retain jurisdiction. Then follow the procedure step by step. It’s fairly straightforward.

By the way, all of the above pertains to conservatorships also.

This is something that I have run across too many times in my court. Lawyers are not aware of the statutes, and so don’t advise their clients.

The main thing is that you can not remove a ward to another county or state without first obtaining authority from the court to do so. It’s your duty to advise your guardian or conservator.

When is a GAL Required? (Part II)

August 1, 2016 § Leave a comment

Last November, we discussed the COA’s decision in Carter v. Carter, a child-custody modification case in which the chancellor had removed custody from Jennifer Carter because of her squalid living conditions and inattention to the child’s dental care.

Jennifer appealed, claiming that it was error for the chancellor to adjudicate the case without appointing a GAL. The COA affirmed, pointing out that neither Jennifer nor her ex had asked the court to appoint one.

Jennifer filed for cert, which the MSSC granted. Oral argument has been completed, and we are awaiting the court’s decision. Jane Tucker posted on the case with links to the cert petition, supplemental briefs, and video of the oral argument. You can access her post at this link.

Here’s hoping that the high court takes this opportunity to clarify just what allegations or proof are necessary to trigger appointment of a GAl, and how grievous the situation needs to be. As for allegations, Jennifer argued in her cert petition that the COA’s decision imposes too harsh a standard on litigants; in other words, she is arguing that once the proof is in the record the chancellor has a duty to appoint. The question remains, though, how serious the child’s circumstances must be to require a GAL. In his opinion for the COA, Judge Fair wrote that the supreme court has typically drawn the line at fact situations that would trigger youth court jurisdiction, and he found that the facts in Carter did not rise to that level. maybe the court can add some clarity.

Suing on Behalf of a Ward

June 15, 2016 § 2 Comments

I frequently see petitions to appoint a guardian on behalf of a ward whose “only asset is a claim for personal injuries” to be asserted in a suit to be filed in circuit or federal court. I sign the order appointing and then don’t hear anything further from the participants until some time later after they have either hit the jackpot or have some middling settlement to approve.

The problem with the above is that it omits several steps. Several important, even vital, steps.

Take a look at MCA 93-13-27. Here it is in a nutshell:

  • All “suits, complaints, actions and administrative and quasi judicial proceedings for and on behalf of a ward for whom a general guardian has been appointed” must be brought in the name of the guardian for use and benefit of the ward.
  • Even though the foregoing language uses the term “general guardian,” the statute goes on to apply itself equally to general guardians, guardians of the estate only, guardians of the person and estate, and guardians of the person only.
  • Any such action may be commenced only after authority has been granted to the guardian “by proper order or decree of the court or chancellor of the county in this state in which the guardianship proceedings are pending, upon proper sworn petition and supporting oral testimony.”
  • A certified copy of the order authorizing the filing of the suit must be attached to the pleading commencing the action.
  • If suit or other proceeding is commenced, a certified copy of the authorizing order must be submitted “as evidence of his authority.”

The intent of the statute is clear that (a) you must get authority before proceeding, and (b) you must put the court or tribunal and other party on notice of your authority.

What might happen if you did not get authority and your case languished on a circuit court docket for more than three years after the occurrence and the other side moved to dismiss per MRCP 12(b)(6). Might you have a statute-of-limitations problem?

 

Mismanagement of a Guardianship Morphed into a Crime

November 17, 2015 § 1 Comment

Attorney Michael J. Brown mismanaged and embezzled more than $1.2 million of guardianship funds. It’s a sordid tale that you can review at this post, which includes links to several others. Brown’s conduct also attracted an indictment in Rankin County Circuit Court.

On November 12, 2015, the MSSC in Brown v. State affirmed his convictions, but reversed as to restitution:

¶61. Brown’s convictions were supported by sufficient evidence and were not against the great weight of the evidence. Ample evidence existed to show that the $550,000 in loans came out of guardianship funds, and the trial court applied the law correctly with regard to the “own use” element of the statute. Brown waived any objection to Rule 404(b) evidence being admitted at trial, and he waived any objection to the language in the jury instructions by failing to raise the issue in his post-trial motion. Regardless, both arguments are without merit. Thus, Brown’s convictions and sentence to a term of years are affirmed. However, the trial court exceeded its sentencing authority in sentencing Brown to pay $1.2 million in restitution; thus, this Court vacates the restitution portion of Brown’s sentence and remands the case for resentencing, in other words, for again determining restitution, consistent with this opinion.

Brown has already been disbarred. He leaves in his wreckage the ward, whose assets will probably never be recovered, his career, his family, and his reputation.

I doubt most of you will ever fall into such an abyss. But if you find yourself close, step back and think of how Mr. Brown’s misadventure turned out.

When is Appointment of a GAL Required?

November 4, 2015 § 1 Comment

There are three circumstances when appointment of a GAL in chancery court is required by statute: (1) when an allegation is made in pleadings or at hearing that there has been abuse or neglect; and (2) when there is an adoption to which both active parents have not consented; and (3) for the child in a termination of parental rights suit.

Other than those situations, it is in the chancellor’s discretion whether to appoint a GAL.

The question remains, however: what needs to be alleged in order to trigger the statutory mandate? That was the question before the court in the COA case of Carter v. Carter, handed down October 6, 2015.

Josh and Jennifer Carter were from each other in 2011. Jennifer got custody of the parties’ daughter, Delaney. Josh filed for modification of custody in 2012, alleging material change and adverse effect. In the course of the proceedings, Josh filed a motion to inspect the premises of Jennifer’s residence. The chancellor ruled that neither Josh nor his attorney should do so, but he appointed Aby, a local attorney to perform the inspection and file a report with the court. Although the appointment did not designate her as a GAL, and it did not spell out any duties of a GAL, Aby titled her report, “Report of Guardian Ad Litem.” Neither party had requested appointment of a GAL. At trial, Aby testified to deplorable conditions at Jennifer’s home, which the chancellor characterized as “shocking,” “squalid,” and “dangerous.” Aby’s report, considered with testimony about Delaney’s medical needs, were enough to convince the chancellor to conclude that custody should be modified, and he awarded custody to Josh.

Jennifer appealed, arguing that the chancellor erred by not appointing a GAL in the case. Specifically, she pointed to Josh’s testimony that she overlooked Delaney’s medical and nutritional needs, which, she contended, should have required the appointment. Jennifer’s argument raises what appears to be a simple question, but is really deceptively complex: what does it take to trigger the statutory mandate?

Judge Fair, for the majority, described the difficulty:

¶16. Our analysis of this issue is made more difficult because our supreme court has not elaborated on what sort of allegations are required, or when or how those allegations must be made, in order to make the appointment of a guardian ad litem mandatory. Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem. Jennifer’s implicit argument that any suggestion of neglect requires the appointment of a guardian ad litem would amount to a de facto rule that a guardian ad litem must be appointed in most custody disputes.

Almost every custody modification case involves allegations of “imperfect parenting” that often does not rise to the level off neglect and abuse. So where does one draw the line?

The court went on to point out that the MSSC “has always predicated the guardian-ad-litem requirements on the Mississippi Youth Court Law and related statutes,” and analyzed the applicable law. The opinion continues:

¶18. We conclude that since the requirement of appointing a guardian ad litem in chancery cases derives from an exception to the youth court’s jurisdiction over abused or neglected children, to trigger the guardian-ad-litem requirement, the allegations of neglect must be of sufficient severity such that, if proven, they would have triggered the youth court’s jurisdiction had there not already been proceedings in the chancery court. In other words, they must amount to an allegation that the child was a neglected child as defined by the Youth Court Law. It defines a neglected child as one:

(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter;

(ii) Who is otherwise without proper care, custody, supervision or support; or

(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or

(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.

Miss. Code Ann. § 43-21-105(l) (Supp. 2014).

¶23. Given the wide range of conduct that could arguably constitute neglect, this Court has held that when neglect is not expressly alleged, the question of whether it has been effectively alleged is entrusted to the sound discretion of the chancellor. See Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004). In this case, the chancellor clearly did not take the allegations and evidence presented regarding Delaney’s health and care in Jennifer’s custody as possessing the weight and severity of an allegation that she was a neglected child under the Youth Court Law, and we cannot say there was an abuse of discretion in the failure to appoint a guardian ad litem to investigate.

The COA did hold that, if appointment of a GAL in this case were required, Aby’s conduct fulfilled that role.

It would be a good idea, if you think a GAL should be appointed, to include some language in your pleadings that invokes the criteria of the Youth Court Act. Then you can point to the specific language of the statute to support your request. Only be sure you have substantial proof to support your allegations, or else your client may be looking at paying out a chunk of cash for the GAL’s troubles, not to mention the other side’s attorney’s fees to defend.

 

 

 

 

 

An Occasion When Adjudication is not Res Judicata

July 27, 2015 § Leave a comment

Does the judgment closing a conservatorship (or guardianship, for that matter) bar a subsequent action to set aside transactions that could have been adjudicated within the conservatorship while it was open?

That was the question taken up by the MSSC in the case of Estate of White: White v. White, decided December 11, 2014.

In that case, Charles William White (Bill) and his son, Tommy, were partners in a convenience store operation. In 2000, Bill married Anita White. Tommy bought out Bill in 2005, and paid his father cash for his interest, but the two never exchanged deeds necessary to finalize the buyout.

By 2009, Bill was in need of a conservatorship due to declining health. Anita and Tommy disagreed strongly over the course of Bill’s care; Anita wanted to make him comfortable so he could die with dignity, and Tommy insisted on life-sustaining care. Tommy used a power of attorney (POA) to transfer Bill’s interest in the partnership properties to himself to complete the transfer.

Tommy filed a petition to be appointed conservator of his father. Anita filed a counterclaim asking that she be appointed instead, and she asked the court to set aside any and all transactions by which Tommy transferred interest in his father’s assets to himself using Bill’s POA.

The chancellor found a conservatorship to be in Bill’s best interest, but rather than appointing either Anita or Tommy, he appointed a third party.

When Bill died in 2009, the conservator petitioned to the court to be discharged and to distribute the assets of the conservatorship to Bill’s estate. Both Anita and Tommy agreed to an order to that effect. The order waived accounting, but did not mention Anita’s claim to set aside the POA transactions.

In 2010, Anita filed a complaint to set aside the POA transactions. Both parties filed motions for summary judgment. The court sustained Tommy’s motion, ruling that the order closing the conservatorship barred Anita’s subsequent action, because she had brought the action within the conservatorship, which had been closed.

Anita appealed, and the COA affirmed, finding that the four identities of res judicata were present, and that, therefore, her action was barred.

The MSSC granted cert, and reversed both the COA and the chancellor. Here is how Justice Dickinson addressed the issue for a unanimous court (Justice Lamar not participating):

¶9. We conduct a de novo review of a trial court’s grant of summary judgment. A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff’s suit centers around issues decided in a previous lawsuit. But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.

¶10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” While our prior cases have considered whether a judgment constituted a “final judgment on the merits” on a case-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court from reaching the merits of the case. If, in the previous case, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.

¶11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.

¶12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not.

¶13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s death. The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.

[NOTE: Authority supporting the above language was set out in footnotes that were omitted in this post because they are too tedious to copy and paste. You can click on the link above to access the full opinion.]

You can take away from this that an order or judgment closing a conservatorship or guardianship does not extinguish the claims that were raised during the time that it was opened.

What would have been the outcome if Anita had not filed her claim to set aside the transactions while the conservatorship was open? My thinking without research is that she would have had a viable claim if she filed within the statute of limitations. What do you think?

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