January 12, 2015 § 3 Comments
No posts this week due to a death in the family.
Posts resume next week.
“Quote Unquote”
January 9, 2015 § Leave a comment
“What one needs to do at every moment of one’s life is to put an end to the old world and to begin a new world.” — Nikolai Berdyaev
“The only joy in the world is to begin. It is good to be alive because living is beginning, always, every moment.” — Cesare Pavese
“Begin; to begin is half the work. Let half still remain; again begin this, and thou wilt have finished.” — Ausonius
A New Judge Blog for 2015
January 5, 2015 § Leave a comment
COA Judge Kenny Griffis has a new blog focusing on appellate practice. Here’s the link.
Judge Griffis is in a position to offer some valuable insight into the workings of our appellate courts, as well as useful observations about appellate cases. He’s also a good writer who is knowledgeable about Mississippi law, so this should become a useful resource.
I notice that he stole the blog’s tagline “News and Commentary of Mississippi Law” at least in part from the anonymous Lost Gap blog. Or maybe it’s coincidental.
The Gift of Care
December 23, 2014 § 2 Comments
A message for this season from Henri J.M. Nouwen.
Why is it that we keep the great gift of care so deeply hidden? Why is it that we keep giving dimes without looking into the face of the beggar? Why is it that we do not join the lonely eater in the dining hall but look for those we know so well? Why is it that we so seldom knock on a door or grab a phone just to say hello, just to show that we have been thinking about each other? Why are smiles still hard to get and words of comfort so difficult to come by? … Why do we keep bypassing each other on the way to something or someone more important?
Maybe simply because we ourselves are so concerned with being different from others that we do not even allow ourselves to lay down our heavy armor and come together in a mutual vulnerability. Maybe we are so full of our own opinions, ideas, and convictions that we have no space left to listen to the other and learn from him or her.
There is a story … about a university professor who came to a Zen master to ask him about Zen. Nan-in, the Zen master, served him tea.
He poured his visitor’s cup full, and then kept pouring. The professor watched the overflowing until he could no longer restrain himself. “It is overfull. No more will go in!” “Like this cup,” Nan-in said, “you are full of your own opinions and speculations. How can I show you Zen unless you first empty your cup?”
To care means first of all to empty our own cup and to allow the other to come close to us. It means to take away the many barriers which prevent us from entering into communication with the other. When we dare to care, then we discover that nothing human is foreign to us, but that all the hatred and love, cruelty and compassion, fear and joy can be found in our own hearts. When we dare to care, we have to confess that when others kill, I could have killed, too. When others torture, I could have done the same. When others heal, I could have healed, too. And when others give life, I could have done the same. Then we experience that we can be present to the soldier who kills, to the guard who pesters, to the young man who plays as if life has no end, and to the old man who stopped playing out of fear of death …
When Jesus had received the five loaves and fishes, he returned them to the crowd, and there was plenty for all to eat. The gift is born out of receiving. Food came forth out of kinship with the hungry, healing out of compassion, cure out of care. he or she who can cry out with those in need can give without offense.
As long as we are occupied and preoccupied with our desire to do good but are not able to feel the crying need of those who suffer, our help remains hanging somewhere between our minds and our hands and does not descend into the heart, where we can care. But in solitude our heart can slowly take off its many protective devices and can grow so wide and deep that nothing human is strange to it.
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Merry Christmas and Happy Holidays to all.
This piece is excerpted from Out of Solitude: Three Meditations on the Christian Life, by Henri J.M. Nouwen, Ave Maria Press. I found this in the December, 2014, print issue of The Sun Magazine.
Reprise: Common Mistakes of Fiduciaries (and their Attorneys)
December 22, 2014 § Leave a comment
FIVE MISTAKES THAT FIDUCIARIES MAKE
July 18, 2012 § 4 Comments
- 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.
- 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.
- 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.
- 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.
- 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.
R.I.P. Chancellor Ray H. Montgomery
December 15, 2014 § 6 Comments
Retired Chancellor Ray H. Montgomery died Sunday, December 14, 2014.
“Quote Unquote”
December 5, 2014 § 1 Comment
“God is striving with us. God is present, whether you just lost your mother to pancreatic cancer or your country just killed people at a wedding party in Yemen. God went to the camps, and God was lynched and shot and tortured. And God is still loving. It’s not our job to read Isaiah and then go sit at Starbucks and talk about what a sad place the world is. It is our job to collaborate with each other and activate that love.” — Rev. Lynice Pinkard
“Remember as you go about your day that you may be the only Jesus some of your friends, neighbors, and family will ever see.” — Wanda Brunstetter
“Do all the good you can, by all the means you can. In all the ways you can. In all the places you can. At all the times you can. To all the people you can. As long as you ever can.” — John Wesley
The Better Chancery Practice Blog 