CONSERVATORSHIP— WALK THROUGH
By Chancellor Charles E. Smith, District 12
The client comes in the door and asks for help with their relative or friend. What do you do?
1. In general, do the same thing as you always have. Ask for general information as to what the problem is and what they are wanting done. The new statute is telling us that we should look for the least restrictive alternatives to help solve the problem at hand. Many times, there are ways to help, that don’t require a guardianship or conservatorship. Please explore all options with the client to see what options may be available short of having to file for the conservatorship.
2. When it is clear that a conservatorship is needed, you will need to discuss the procedures to obtain the conservatorship, who would be best to appoint, and the responsibilities and duties imposed upon the person appointed. You should have a handout of the statutory responsibilities under, Sec. 418, to give to any possible appointee for them to review. You want to make sure they understand their responsibilities before they get appointed. If you wait until afterward there may be problems and the often asked question or statement, “Why didn’t you tell me that to start with”.
3. The appointee must also be informed of the requirement to formulate a plan that must include:
(a) A yearly budget projecting expenses, resources and anticipated fees.
(b) How the conservator will involve the Ward in the management of the Estate.
(c) Any steps to be taken as to restore the ability of the Ward to manage the Estate.
(d) An estimate of the duration of the Estate.
(d) Inform the client of the possibility that the Court may require a plan for investing, protecting, managing, expending, and distributing the assets.
4. Along with the above, you should go ahead and provide to your client the Inventory Form so they can begin work on the asset list which will be needed in filing the required inventory and which will be needed in formulating the management plan.
5. Your client must also provide you with the names and addresses of the parties who need to be served with process along with a copy of the Petition.
6. As part of the process we still need two medical certificates. These can be, two licensed physicians, or one licensed physician and one licensed psychologist, nurse practitioner or physician’s assistant who are not affiliated with the physician. These do not have to be attached to the Petition but will need to be submitted at the Hearing. You still have the same issues with how to obtain these certificates. The new law does not give you any additional help in this regard.
7. There may be other things you need to do or more information you need get to prepare your Petition, but the above should get you started with most of what you will need.
8. Sec. 106—Venue: Venue for a conservatorship proceeding:
(a)County in which the respondent resides, whether or not guardian has been appointed elsewhere; or
(b)If the respondent does not reside in Mississippi, in any county where respondent’s property is located.
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.
9. Ok, now what does the Petition need to contain? There may be an Official Form for the Petition, but, if so, I have not seen it as of the date I was preparing this presentation. I was able to obtain a Guardianship form used in the 10th Chancery District located on their web site. I used its’ general form and modified it so as to be used in the Conservatorship Petition for a Minor or an Adult. I don’t claim this to be correct or complete, but you can use it is a template to create your own form.
10. Sec. 102—Petition contents:
(a) Petitioner information;
(b) Petitioner’s relation to the Respondent;
(c) Respondent’s name, address and county of residence. If the Respondent is a Minor, there will need to be additional information contained. ( see Petition Form)
(d) Basis for appointment. As you can see, there are different criteria for a Minor and an Adult
(e) The Respondent’s needs cannot be met by a less restrictive alternative
(f) Disclosure of bankruptcy or criminal history
(g) The reason the proposed Conservator believes they should be selected and appointed as Conservator.
(h) Attorney information if not filing Pro Se.
There is nothing in the new Law or Rules that prevents multiple parties joining in with the Petition in support of the appointment, as long as they are in agreement in the relief requested. There is no reason to incur the expense to serve necessary parties with process when they can join in with the Petition.
11. Who can file the Petition? Any person who is interested in the financial affairs or welfare of the individual. Interestingly, this includes a person who could be adversely affected by a lack of effective management of the property or financial affairs of the Respondent. The Petition can be initiated by the Chancellor, Clerk, any relative or friend and includes the proposed Ward.
12. Service of process, unless shortened by Court order, shall require seven (7) days notice. Process must be served on the Respondent and one relative living in the State. The reading of Sec. 403 can also be interpreted to require service on the spouse, all children, parents, and all siblings of the Respondent. The language in this section will probably get a little overhaul based on the comments and questions concerning the intent. The form of the process shall conform to Rule 81. Note—If an Adult Respondent is competent, they can join in with the Petition and no additional service of process shall be required.
13. The Hearing;
(a) The burden of proof to appoint a Conservator requires clear and convincing evidence, and, must establish that the identified needs of the Respondent cannot be met by a less restrictive alternative.
(b) The Court can appoint a GAL for the Respondent in its’ discretion.
(c) The Court may appoint an attorney if the Respondent appears without counsel.
(d) The Respondent may present evidence, subpoena witnesses and documents, examine witnesses. The proposed Conservator must attend the Hearing unless excused by the Court.
11. Who should be appointed as the Conservator? Sec. 410, directs the Chancellor to appoint the best qualified person, taking into account the criteria set out therein.
12. Sec. 411. The Order for Appointment must contain:
(a) The specific findings by clear and convincing evidence of the need for appointment containing the statutory language.
(b) Finding of proper notice of hearing on Respondent.
(c) If full conservatorship, explain why limited conservatorship would not meet needs of Respondent.
(d) If Limited Conservatorship, state specific property affected, and the specific powers granted.
(e) Specifically identify name and addresses of persons entitled to notices under Sec. 411(a-j). Please read this section carefully as there are some variations between Minor and Adult Conservatorships.
(Attached is a proposed form for the Order of Appointment for an Adult). I don’t know who authored this form but it is a good start.
11. Required notices following appointment:
(a) Within 14 days the Order of Appointment to Ward and others;
(b) Within 14 days the Statement of Rights to Ward and others; Note—This must be in 16-point font.
11. The Conservator must give 403(d) notice and get prior Court approval to take certain actions as listed in Sec. 14. Again, this should be given to the client to make them aware of what actions need Court approval.
12. Bond and Alternative Arrangements. See Sec. 416 and 417. In general, this is the aggregate Estate value, plus 1 years estimated income.
13. Sec. 416—Oath. Can be signed (at or before) appointment.
14. Sec. 416—Financial Institution -Acknowledgment of Receipt.
15. Sec. 108—Letters of Conservatorship.
16. Sec. 418—Duties of Conservator. I had earlier suggested that you, in your first meeting, give your Conservator a copy of the 418 Duties. Following the Appointment, you will need to go over these with the Conservator and sign and file the corresponding Certificates.
17. Sec. 419—Conservators Plan. In paragraph 3, I referred to the requirement to formulate a Management Plan. This plan must be finalized and filed within 90 days of appointment. We have already looked at some of the requirements so I will not go back over them. Every plan will be specific to that Ward’s assets, income and needs. I have not seen a form Management Plan, so just wing it the best you can until a form is approved.
18. Sec. 420—Inventory. Likewise, the Inventory must be completed and filed within 90 days of appointment. The inventory and plan go hand in hand. The form for this inventory is among those published by the Supreme Court, which should cover the basics, but which can be modified to meet your particular circumstances.
Sec. 420, requires the Conservator to give notice of filing to the required persons within 14 days of the filing of both the inventory and Plan. It appears, that the Court can approve the Plan ex parte, if no objection is filed. The Court may not approve the Plan until 30 days after it is filed. The Inventory stands good unless there is an objection. At least that is the way I read it. There is no stated requirement for the Court to approve the Inventory.
19. Sec. 421, sets out the powers of the Conservator that do not need Court approval. It would be wise to give the Conservator a copy of these powers.
20. Sec. 422—Distribution from Estate: This sets out what assets may be distributed from the Estate without specific Court approval, but conditioned on the rules specified in sub-paragraphs A-D. My advice is to tell your Conservator that, if there is any doubt at all, to check with you first. I can see a lot of problems arising if you don’t stay on top of it closely.
21. Sec. 423—Report and Accounting: This is the annual accounting/report requirement. This report shall be filed annually unless the Court directs otherwise. In addition, a report must be filed upon resignation, removal or termination of the Conservatorship. The report must contain:
(a) An accounting that lists property included in estate, receipts, disbursements and liabilities during the accounting period.
(b) List of services provided to Ward.
(c) A statement whether, how and why the Conservator has deviated from the Plan.
(d) A recommendation as to the need for continued conservatorship and any recommended change in scope.
(e) 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.
(f) Any business relationship the Conservator has with a person who was paid or benefited from Ward’s property.
11. You are not required to file vouchers with the report, unless so ordered, by the Court. Reasonable notice must be given to the Ward and all persons entitled to notice under Sec. 414 within 14 days of filing. This brings up the same question of what is reasonable notice? Sec. 113 and 403 still indicate that a Rule 81 summons must be issued. Again, it makes more sense to try to get the parties entitled to notice, to join in or sign a joinder. The Court will review the report and has the authority to require more information, appoint a GAL to investigate and report. The Court can approve the report or take such other action as it deems appropriate, including a hearing for the removal of the Conservator if the circumstances justify this action. The language of the statute indicates that if no one appears to object to the report the Judge may approve the report without a formal hearing on the record.
12. Sec. 427— Claims. This part of the law is a big change. There is no longer a requirement to publish notice to possible creditors. The new procedure places the responsibility on the claimant to (1) file a claim with the Clerk/Court, (2) sending or delivering a copy of the claim to the Conservator. From my reading this means until both requirements are met there is no burden on the Conservator to do anything. Once the 2 requirements have been met the burden shifts to the Conservator. The filing of the claim tolls the statute of limitation until 30 days after disallowance.
The Conservator has to decide to allow or disallow the claim. This disallowance can be in whole or in part. If the Conservator does not file a disallowance within the 90 days, the claim is deemed to be allowed. The Conservator shall send or deliver to the Claimant a copy of the disallowance. The statute of limitation shall begin running 30 days after the filing of the disallowance. If the Claimant is aggrieved by the disallowance, it may petition the Court for allowance at any time prior to the running of the statute of limitation.
If the claims exceed the Estate Assets the Court shall determine any pro rata share to be paid in order of preference (a-e).
13. Sec. 428. This section deals with the personal liability of the Conservator for their actions. If you go over this with your client hopefully it will help them to perform their duties in a proper manner.
14. Sec. 429— Removal of Conservator. This is very clear and explanatory and hopefully you will not have to use. The Court will appoint an attorney for the Ward seeking to remove the Conservator. The Ward has the right to pick his own attorney or the Court will appoint one.
15. Sec. 430—Termination of Conservatorship: 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 Ward, Conservator or interested person may petition for:
(a) Termination of conservatorship based on no grounds for continuation or best interest of Ward, or
(b) Modification of conservatorship based on grounds for reduced scope of protection.
The Court may hold a hearing on termination or modification on:
(a) Petition supporting reasonable belief that termination or modification would be appropriate
(b) 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.
(c) 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
(d) Determination by the court that a hearing would be in Ward’s best interest.
Court must order termination upon presentation of prima facie evidence supporting it.
Court must modify Conservator’s powers if excessive or insufficient based on Ward’s abilities or limitations, other supports and circumstances.
Court must follow same procedures to safeguard rights in termination as for appointment, unless otherwise ordered for good cause.
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.
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.
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.
16. Sec. 431— Transfer of assets for Minor without Conservator:
If there is no Conservatorship, or a Donor is not aware of the Conservatorship, you can give up to $25,000.00 per year to:
(a) A person with custody and with whom the minor resides,
(b) The minor’s guardian,
(c) A custodian under the Uniform Transfers to Minors Act, Section 91-20-1 et seq.
(d) A financial institution account or certificate in minor’s name and shall give notice to the minor, or
(e) An ABLE account.
If there is knowledge of a Conservatorship these funds are to be turned over to the Conservator.
The above information is just a brief overview of the Conservatorship act. Gray Edmondson and Richard Courtney have prepared a good summary of the new GAP ACT which they presented to the Chancery Clerks Conference. It is much more detailed and would be a good reference.
IN THE CHANCERY COURT OF_________________COUNTY, MISSISSIPPI
______________ JUDICIAL DISTRICT
IN THE MATTER OF THE CONSERVATORSHIP OF ______________________________________, CAUSE NO. __________________________
( ) A MINOR
( ) AN ADULT
BY PETITIONER(S) _________________________________
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.
PETITION FOR APPOINTMENT OF CONSERVATOR(S)
UNDER SECTION 402
______________________________________, a person interested in the welfare of the RESPONDENT referenced herein, hereby certifies:
1. Petitioner resides at: (State Petitioner’s street address)
2. Petitioner’s relationship to the RESPONDENT: (Describe: Parent, child, sibling, grandparent, aunt/uncle, relative, friend etc.)
3. The RESPONDENT is in need of a CONSERVATOR: (State RESPONDENTS name, date of birth, current street address, current county of residence)
FOR A MINOR:
4. The names and physical addresses of the minor’s biological parents are (attach birth certificate if available): (Include each parent’s name, physical address, and mailing address if different)
5. If one or both of the minor’s biological parents are no longer living (attach death certificate), the minor’s next closest relatives are: (State name, relationship to minor, street address)
6. Attorney(s) for the parents of the minor, if any (in any action or capacity) are: (State attorney’s name, the parent represented, and the attorney’s street and mailing address)
BASIS FOR APPOINTMENT:
7. ( ) The minor owns funds or other property requiring management or protection that otherwise cannot be provided;
8. ( ) The minor has or may have financial affairs that may be put at unreasonable risk or hindered because of the minors age;
9. ( )Appointment is necessary or desirable to obtain or provide funds or other property needed for the support, care, education , health or welfare of the minor.
FOR AN ADULT:
10. The adult is unable to manage property or financial affairs because:
( ) Of a limitation in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services or technological assistance;
( ) The adult is missing, detained, incarcerated, or unable to return to the United States;
11. Appointment is necessary to:
( ) Avoid harm to the adult or significant dissipation of the property of the adult;
( ) Obtain or provide funds or other property needed for the support, care, education, health or welfare of the adult or of an individual entitled to the adult’s support.
12. The Respondent’s needs cannot be met by a less restrictive alternative.
13. Disclosure of bankruptcy or criminal history:
(a) Petitioner has/has not been a debtor in a bankruptcy, insolvency, or receivership proceeding;
(b)Petitioner has/has not been convicted of any of the following: (i) A felony; (ii) A crime involving dishonesty, neglect, violence, or use of physical force; or (iii) Other crime relevant to the functions the person would assume as guardian or conservator.
14. The Petitioner(s) should be selected as Conservator because:
WHEREFORE, Petitioner(s) requests appointment by this Court as CONSERVATOR of ___________________________________.
RESPECTFULLY SUBMITTED, this the ________ day of ___________, 20_____.
Prepared by: Name: _________________________________ MSB Number _______________________
Pro se Address: _____________________________________
State___________ Phone: _______________________ Zip: ____________
Email address: _________________________________
STATE OF MISSISSIPPI COUNTY OF ____________
Personally appeared before me, the undersigned authority, in and for the aforesaid jurisdiction, ___________________, who having been by me first duly sworn stated on his/her oath that the matters and things stated in the above foregoing instrument are true and correct as therein stated.
___________________________ (Type Name Here)
SWORN TO AND SUBSCRIBED before me this the ____day of ________, 20____.
My Commission Expires: ____________________