Difficulties in Talking About Incompetence and Incapacity, Part II
August 26, 2014 § Leave a comment
[This is Part II of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]
New Statute Relating to Guardianships and Conservatorships
In the most recent term, the legislature passed Senate Bill 2240, [Fn 1] which made substantial additions and some changes to the statutes governing conservatorships and guardianships. Most of the new provisions related to multi-state issues and jurisdiction. There is a provision defining conservator:
[Fn 1] The full statute may be found at: http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2200-2299/SB2240SG.pdf
“Conservator” means a person appointed by the court to administer the property of an adult, including a person appointed under Section 93-13-251 et seq.
The cited code sections are those for conservatorships; it is not clear why the word “including” is used. There is a provision defining guardian:
“Guardian” means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under Section 931-13-111 and Sections 931-13-121 through 93-13-135.
The cited sections are the guardianship statutes.
These provisions have been described as clarifying the distinction between a conservatorship and guardianship. [Fn 2] In one aspect, it is confusing. Under prior law, the conservatorship statute provided for a conservator “to have charge and management of the property” of the subject, or, if the court saw fit, the person of the adult. Miss. Code. Ann. § 93-13-251. This provision is explicitly carried forward by Senate Bill 2240. It is not entirely clear how these different definitions (“managing” property and “having charge and custody of the person” versus “mak[ing] decisions regarding the person of an adult…”) will work in practice, if they are different at all. Further evidence that they may not be different is found in another statutory provision, Miss. Code Ann. § 93-13-261, which defines the powers of a conservator as the same as those of the guardian of a minor.
[Fn 2] Judge Primeaux on his blog, which is one of the best legal resources on the internet for Mississippi lawyers, particularly those in chancery court, described the definitions as clarifying. https://chancery12.wordpress.com/2014/07/10/new-procedures-in-adult-guardianships-and-conservatorships/
The statute also defines an “Incapacitated person” as “an adult for whom a guardian has been appointed….” This highlights a distinction between conservatorships and guardianships that will be discussed, below, in the section on conservatorships: An adult under a guardianship is said to be “incapacitated,” while the subject of a conservatorship is “incompetent.”
Guardianships
Incapacity requiring a guardianship for an adult comes the closest to having a statutory definition. In a chapter titled, “Persons in Need of Mental Treatment,” Miss. Code Ann. §93-13-111 provides:
The chancellor may appoint guardians of the person and estate, or either, of persons found to be in need of mental treatment as defined in Section 41-21-61 et seq. and incapable of taking care of his person and property, upon the motion of the chancellor or clerk of the chancery court, or upon the application of relatives or friends of such persons or upon the application of any other interested party.
This seems to require both a showing of “need of mental treatment” and that the person is “incapable of taking care of his person and property.” The statute then restates the requirement but seems to say that either showing would suffice:
If the chancellor should find from the evidence that such person is in need of mental treatment and incapable of taking care of his estate and person, or either, the chancellor shall appoint a guardian of such person’s estate and person, or either, as the case may be.
The language stating it can be “either” here in the statement of the required proof and, later, in the description of the contents of a petition suggests that either would suffice. The statutory provision referred to by the guardianship statute does not define persons in need of mental treatment. Instead it defines a “Mentally ill person” and a “Mentally retarded person.” Miss. Code. Ann. § 41-21-61 (e) and (f). It is important to note that chapter 41-21 is the part of the code that provides for a commitment proceeding; essentially for a chancellor to find a person is in need of mental treatment, the chancellor must find that the person is subject to being committed. [Fn 3] The statutory definition may be as important for what it excludes at the end as it is for what it includes at the beginning. It provides:
(e) “Person with mental illness” means any person who has a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which (i) is manifested by instances of grossly disturbed behavior or faulty perceptions; and (ii) poses a substantial likelihood of physical harm to himself or others as demonstrated by (A) a recent attempt or threat to physically harm himself or others, or (B) a failure to provide necessary food, clothing, shelter or medical care for himself, as a result of the impairment. “Person with mental illness” includes a person who, based on treatment history and other applicable psychiatric indicia, is in need of treatment in order to prevent further disability or deterioration which would predictably result in dangerousness to himself or others when his current mental illness limits or negates his ability to make an informed decision to seek or comply with recommended treatment. “Person with mental illness” does not include a person having only one or more of the following conditions: (1) epilepsy, (2) an intellectual disability, (3) brief periods of intoxication caused by alcohol or drugs, (4) dependence upon or addiction to any alcohol or drugs, or (5) senile dementia.
[Fn 3] Beyond the definition of a mentally ill person, the procedures in the guardianship statutes are different than the procedures in the commitment proceeding statutes. Commitment proceeding statutes provide that a relative “may make affidavit” that includes facts relating to why the commitment is needed. Miss. Code. Ann. § 41-21-65. They provide that, after the hearing, the chancellor “shall forthwith appoint” either two physicians or a physician and a psychologist to conduct a physical and mental examination of the person. Miss. Code. Ann. § 41-21-67. There are no parallel provisions in the guardianship statute.
If by “person in need of mental treatment,” Miss. Code Ann. §93-13-111 means “person with mental illness,” then persons with an intellectual disability or senile dementia could not be placed in guardianships under that part of the test. They are specifically excluded. [Fn 4] The statute goes on with another definition:
(f) “Person with an intellectual disability” means any person (i) who has been diagnosed as having substantial limitations in present functioning, manifested before age eighteen (18), characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two (2) or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, and (ii) whose recent conduct is a result of having an intellectual disability and poses a substantial likelihood of physical harm to himself or others in that there has been (A) a recent attempt or threat to physically harm himself or others, or (B) a failure and inability to provide necessary food, clothing, shelter, safety, or medical care for himself.
[Fn 4] That infirmities of aging do not support appointment of a guardian is confirmed by Miss. Code. Ann. § 93-13-121, which covers appointment of a guardianship for an adult who had been appointed an out-of-state guardian. It requires that the court find that the ward is now a resident of this state and is incompetent to manage his estate, but that “infirmities of old age shall not be considered elements of infirmities.”
Miss. Code Ann. § 41-21-61 (f). The language about the incompetencies required to appoint a guardian in this paragraph—”failure to provide necessary food, clothing, shelter, safety, or medical care for himself”—would seem almost identical to the second requirement of Miss. Code. Ann. § 93-13-11— “incapable of taking care of his estate and person.”
The code provides that a guardianship proceeding can be begun by the chancellor’s own motion, a motion from the chancery clerk, or a motion by “relatives or friends of such persons” or “the application of any other interested party.” Miss. Code. Ann. § 93-13-111. The petition is required to be sworn. It must be: “a sworn petition in the chancery court of the county of the residence of such person, setting forth that such person is in need of mental treatment and incapable of taking care of his person and estate, or either.” A guardianship proceeding begins quickly—once a petition is filed, a hearing can be had on five days notice to the potential ward. Id.
Difficulties in Talking About Incompetence and Incapacity, Part I
August 25, 2014 § Leave a comment
[This is Part I of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]
“In defining what must be shown to establish incompetence, ‘courts… have recognized that a firm definition of the grounds named within a statute is difficult to enunciate. Rather, the courts generally have prescribed the degree of acumen necessary to manage property, but left that determination to a factual analysis of the particular case…. ” Harvey v. Meador, 459 So.2d 288, 292 (Miss. 1984).
Introduction
The terms “incompetence” and “incapacity” must be understood in representing elderly clients, but yet their meaning seems just out of reach, or, as the Court stated in Harvey, “difficult to enunciate.”
The terms do not mean the same thing, as a legal matter, in different contexts. It is clear, for instance, that a person can be incompetent, justifying the appointment of a conservator, but yet be perfectly competent to make a will. See Lee v. Lee, 357 So.2d 713 (Miss. 1976) (so holding). But yet a person subject to a conservatorship, who can make a will during lucid intervals, cannot make a deed without court approval, whether lucid or not. In re Estate of Thomas, 853 So. 2d 134, 135 (Miss. Ct. App. 2003); see Miss. Code Ann. § 93-13-261 (statutory limitation on conveyance powers of person subject of a conservatorship).
These problems with definitions are exacerbated by the fact that legal professionals must also work with health care and social work professionals in providing services for these clients. It is a commonplace that doctors and lawyers have problems communicating about incapacity in the form of mental illness. The medical profession does not use the statutory terminology lawyers are required to use and often does not think in comparable terms. This paper will attempt to pin down, to the extent possible, the language lawyers are required to use in considering questions of competency and capacity, in hopes of making possible a discussion of how best to approach these issues when they arise with elderly clients.
These issues arise in a number of contexts in representing elderly clients, beginning with the routine memory issues due to aging through the effects of Alzheimer’s disease or dementia on memory and function, and include developmental disabilities that an older client has dealt with since childhood.
Competence / Incompetence and Incapacity
Black’s Law Dictionary’s negative definition is clearest
Incompetency. Lack of ability, legal qualification, or fitness to discharge the required duty. A relative term which may be employed as meaning disqualification, inability or incapacity and it can refer to lack of legal qualifications or fitness to discharge the required duty and to show want of physical or intellectual or moral fitness.
The key word in this definition is the word “relative.” Incompetency is best thought of relevant to the particular kind of incompetence: As noted, a person can be incompetent to manage their own business affairs but perfectly competent to make a will. Incompetence is used in the law in a lot of contexts, some having nothing to do with the kind of competence discussed here (for instance, the question of whether a witness is competent).
One particular way that the kind of incompetence is critical is that the test varies from very stringent (that is, requiring much more serious proof) to less depending on the legal context. The criminal context involves probably the most difficult burden to show incompetence in the area of competence to stand trial or the level of incompetence required for the insanity defense. This paper is limited to the civil context and will focus on four different versions of incompetence: incapacity at the level of non compos mentis (Latin meaning, literally, “not of sound mind”) involved in appointment of a guardian, “management competency” involved in appointment of a conservator, competence to make a will, and competence to make a power of attorney.
Another way the question of competence is “relative” is the different ways the word is used by different professionals and by the lay public.
The Concepts of Incompetence and Incapacity in Chancery Matters
August 22, 2014 § Leave a comment
As the population ages, attorneys are increasingly faced with issues of the elderly. Adult guardianships, conservatorships, powers of attorney, health-care directives, and estate planning all involve to some extent determinations of the competence and capacity of individuals so that appropriate decisions may be made.
Attorney Tom Freeland, IV, of Oxford, prepared a paper entitled, “Difficulties in Talking About Incompetence and Incapacity,” to present to the North Mississippi Rural Legal Services annual Elder Law Seminar at Ole Miss on August 1, 2014. The program was sponsored and presented by the NMRLS Elder Law Project, of which Ms. Jennie Kilgore is the Director, and the Three Rivers Agency on Aging.
Mr. Freeland has granted me permission to serialize his paper here, and you can read it beginning Monday.
Reprise: Improving your Probate Practice
August 21, 2014 § 1 Comment
Reprise replays posts from the past that you might find useful today …
FIVE TIPS TO IMPROVE YOUR PROBATE PRACTICE
April 19, 2011 § 6 Comments
- Always accompany the executor, administrator, guardian or conservator to the bank or other financial institution to open the estate account. That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do.
- Always ask that a duplicate bank statement be sent to you for the estate account. If the bank balks, direct that the bank statement be sent to you and not the fiduciary. Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made. Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
- Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate. This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
- Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness. It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
- Do an inventory even when one is not required. Inventory establishes the baseline for accounting. It also can help neutralize the claims of many disgruntled heirs and sideline-sitters.
Charting Relationships
August 20, 2014 § 4 Comments
It can be devilishly difficult to figure out relationships among people in your head, especially when your client says something like, “She was my double third cousin on my momma’s side, and she married my husband’s great-uncle’s niece after her first husband died.”
But it has to be done in estate work, property (especially partition), wrongful death, and in any case where you have to compute relationships within the third degree.
One super tool is the Nolan Chart of Relationships and Degrees of Kindred, which is reproduced below:
You can access a large-size .jpg file by clicking this link.
You will also find it at 51 So.2d 542.
The View from the Tip of the Iceberg
August 19, 2014 § 2 Comments
This is for the young lawyers out there.
Imagine yourself perched at the pinnacle of what appears to you to be a mountain in the middle of the ocean. You examine your environs as closely as you can, and gather that you are on a peak of ice, surrounded by miles of water. The mountain is relatively featureless, save for a few large stones here and there. The slopes descend into the sea and nothing beneath the surface of the water is visible. Everything you know about your location is what you can see. You conclude that you are on an iceberg, and you guess that there is much more to it that is hidden from you below the waterline, but you have no actual knowledge of the size or dimensions of what lies below.
That view from the tip of the iceberg is what the judge has at the conclusion of a trial in chancery.
The judge knows that there is so much more that is not in the record, but all the judge may go on is what has been revealed. The scope of the judge’s knowledge of the case is limited by the rules of evidence, the MRCP, the pleadings, the discovery, the skill of the lawyers, and the ability of the witnesses to articulate. All of those things are filters through which the facts are passed and reduced to the concentrated mass that the judge must consider in making a ruling. And the judge must make his or her ruling based only on the competent proof in the record.
Remember that you and opposing counsel know ten times or more about your case than the judge will ever know. And never forget that your client and the party opposite know ten times more about the case than they will ever share with the attorneys.
If you don’t put something into the record, the judge not only will not know about it, she can not even consider it. And I am talking about the record as in via evidence. Pleadings are not evidence. Just because you alleged a fact in a pleading does not mean that it is proven so that the judge can consider it.
As you plan out your case for trial, take a minute and imagine that view from the iceberg. Ask yourself what it is you see if you identify all of the competent evidence that you get into the record. Is it enough? Does it include all the judge needs to know? Is there enough evidence to support every factor you need to prove in order to prevail? Have you made a thorough enough record to support your argument on appeal?
A Primer on the Law of Pre-Nups
August 18, 2014 § Leave a comment
Only a couple of weeks ago I posted some random thoughts on pre-nuptial agreements that I thought you might find useful.
Then, last week, as if on cue, the COA handed down its decision in McLeod v. McLeod on August 12, 2014, a case involving a pre-nuptial agreement. Judge Griffis’s opinion is a concise statement of the law that you would need in a case involving one of these agreements. Here it is, extracted for your use:
¶11. The Mississippi Supreme Court has held that prenuptial agreements must be fair in the execution, and a duty of disclosure shall be imposed. Smith v. Smith, 656 So. 2d 1143, 1147 (Miss. 1995) (citing Hensley v. Hensley, 524 So. 2d 325, 327 (Miss. 1988)).
¶12. Prenuptial agreements are enforced like contracts: the first rule of interpretation of contracts is to follow the intent of the parties. Long v. Long, 928 So. 2d 1001, 1003 (¶14) (Miss. Ct. App. 2006). This intent was recognized initially by the prenuptial agreement, which provided:
Each of the parties shall retain all rights in his or her own separate property, as hereinafter defined, whether now owned at the time of the marriage of the parties or acquired thereafter, and each of them shall have the absolute and unrestricted right to dispose of such property during his or her lifetime and upon his or death, free from any claim which may be made by the other by reason of their marriage, and with the same effect as if no marriage had occurred between them, and such separate property shall not be subject to any division between the parties . . . as marital property subject to equitable distribution or division under the laws of Mississippi . . . .
¶13. “A contract may be either procedurally or substantively unconscionable.” West v. West, 891 So. 2d 203, 213 (¶26) (Miss. 2004). Procedural unconscionability deals with the formation of the contract. Id. (citing East Ford, Inc. v. Taylor, 826 So. 2d 709, 714 (Miss. 2002)). Substantive unconscionability is apparent “when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms.” Id. (citing In re Last Will & Testament of Johnson, 351 So. 2d 1339, 1341 (Miss. 1977)).
* * *
¶15. Each party must enter a prenuptial agreement voluntarily. Deborah H. Bell, Bell on Mississippi Family Law § 23.02[2] (2nd ed. 2011). In In re Last Will & Testament of Cooper, 75 So. 3d 1104, 1108 (¶11) (Miss. Ct. App. 2011), this Court affirmed the chancellor’s judgment and found that there was no evidence to support a claim of involuntariness, because neither party was “forced in any way to sign” the prenuptial agreement.
¶16. This Court has held that “it is well established that ‘a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.’” Ware v. Ware, 7 So. 3d 271, 277 (¶20) (Miss. Ct. App. 2008) (quoting Oaks v. Sellers, 953 So. 2d 1077, 1082 (¶17) (Miss. 2007)). And, as this Court has stated, “it is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” In re Cooper, 75 So. 3d at 1107 (¶9).
* * *
¶21. … While disclosure is of “paramount importance,” this Court has found that a prenuptial agreement can still be valid even if a financial disclosure is not attached. Mabus v. Mabus, 890 So. 2d 806, 819-21 (¶¶53, 59, 64) (Miss. 2003).
¶22. Here, the agreement stated that a full disclosure was made. Specifically, it provided:
[Willie] hereby states: that he has been fully informed regarding the property and estate of [Jeanell] and has examined the statement of her assets set forth in Exhibit “A” annexed hereto prior to signing this Agreement . . . .
[Jeanell] hereby states: that she has been fully informed regarding the property and estate of [Willie] and has examine the statement of his assets set forth in Exhibit “B” annexed hereto prior to signing this agreement.
* * *
¶24. Prenuptial agreements “must be fair ‘in the execution’ or procedurally fair.” Bell, at § 23.02[5] (citing Mabus, 890 So. 2d at 821; Smith, 656 So. 2d at 1147). Fairness in the execution can be affected by the presence of individual counsel, whether the parties had time to review the agreement, education of the parties, and whether the agreement was explained. Id.
* * *
¶26. This Court in Ware, 7 So. 3d at 277 (¶20), found that there was no evidence to suggest that one of the parties was forced to sign the prenuptial agreement, although one party admitted that she did not read the contract nor take it to an attorney to review it before she signed it. This Court held that “it is well established that ‘a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.’” Id. (quoting Oaks, 953 So. 2d at 1082 (¶17)). Additionally, “independent counsel is not required to fairly execute a prenuptial agreement.” Id. (quoting Mabus, 890 So. 2d at 821 (¶63)).
* * *
¶29. Substantive unconscionability is apparent “when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms.” West, 891 So. 2d at 213 (¶26) (citing In re Johnson, 351 So. 2d at 1341). The Mississippi Supreme Court has defined an unconscionable contract as “one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other.” In re Johnson, 351 So. 2d at 1341 (quoting Terre Haute Cooperage, Inc. v. Branscome, 203 Miss. 493, 503, 35 So. 2d 537, 541 (1948)).
¶30. Two clauses were included in the agreement that provided what would happen if one of the parties died:
Upon the death of either party during their marriage, with the other Party surviving, the Parties agree that all property which is joint tenancy with right of survivorship property or survivorship marital property shall pass to the surviving party by right of survivorship.
Both parties agree that a Will of the estates and properties will be executed at a later date that will outline estates, beneficiaries, survivorship, and or any other grounds not covered by this agreement.
¶31. In his order, the chancellor stated:
Under the prenuptial agreement, Jeanell was entitled to only that which Willie promised he would leave her in his Last Will and Testament, whenever he decided to have that document prepared. No specifics regarding what he intended to leave her in order to provide for her as she had requested were provided and are purely speculative. As written, this provision is inequitable and unenforceable and does nothing to provide for Jeanell at the time of a divorce or at the time of his death. On the other hand, under the laws in Mississippi, without a prenuptial Jeanell would be entitled to an equitable share of the marital estate at the time of divorce.
. . . As such the court finds that the prenuptial agreement “ . . . was such an agreement that no wife in her senses and not under a delusion would agree to and no fair-minded husband would propose.”
¶32. In Crisler v. Crisler, 963 So. 2d 1248, 1252-53 (¶9) (Miss. Ct. App. 2007), this Court stated:
[P]arties are bound by what they promise in writing. But, we are not bound to adopt a construction not compelled by the instrument in which we would have to believe no man in his right mind would have agreed to. A construction leading to an absurd, harsh or unreasonable result in a contract should be avoided, unless the terms are express and free of doubt.
(Citing Frazier v. Ne. Miss. Shopping Ctr., 458 So. 2d 1051, 1054 (Miss. 1984)). Further, in Hensley, the court stated: “[I]t is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Hensley, 524 So. 2d at 328.
The COA reversed the chancellor’s ruling that this particular agreement was unenforceable. I recommend you read the opinion to see how the COA reached its conclusion. You will find it instructive as to how the court views these contracts.
I stand by my previous recommendations, however. You should be careful to see that every i is dotted and every t crossed. Even though every desirable formality was not observed in McLeod, there was adequate language in the agreement to overcome Ms. McLeod’s objections to it on appeal, and the facts were found by the COA to be in favor of enforcement. Sloppy drafting and unfavorable facts would probably have produced a different outcome.
A Harum-Scarum Scam
August 15, 2014 § 10 Comments
Periodical print publications are, I fear, going the way of the aurochs due to the internet. So publishers have had to contrive some clever ways to troll for prospective subscribers.
One honest strategy is to get sample magazines into the hands of potential subscribers in hopes that they will say “Why not,” and take the plunge. For instance, I recently ordered some shirts from a catalog, and *VOILA!* I am now receiving gratis a rotating subscription (for I do not know how long) to the various Condé-Nast publications, not a single one of which in the non-gratis world would I bother to pick up, much less read. These are a “bonus” for my catalog order. Until this week I had received Vogue, Glamour, and Travel & Leisure.
This week the rotation brought me a copy of Gentlemen’s Quarterly magazine here at the courthouse. The 98%-nude model on the cover set off quite a titilation — so to speak — up here on the second floor, as you can imagine. One of our local barristers took the issue home with him, no doubt to do forensic study. Thanks to these publications I have wearily become accustomed to having to explain to everyone who sees my mail on the desk of the court administrator that I did not subscribe … blah, blah, blah … you know the rest of the story.
Some publishers, however, have taken the low road.
My wife subscribed for several years to a certain magazine. She simply subscribed, using one of those little cards that fall on the floor in the doctor’s office. She did not sign a contract with a door-to-door magazine peddler. That periodical, as is the custom, sends out renewal notices almost from the first month of your subscription offering phenomenal deals in the hope, I guess, that you will keep extending your enlistment and they will keep on receiving injections of your cash. Every promo they send is marked “Urgent!” and “Last Chance” and “Warning — Offer Expiring.”
So far not so bad. Annoying, but not so bad. My wife chose to ignore the offers and let her subscription lapse.
But this is where it takes an unhappy turn. This week she received notice that if she did not remit $20.97 immediately, her account would be turned over for collection. Yes, collection.
She was upset when she showed me the notice. Why should she be dunned and sued over this? She did not understand. I reassured her that she owes them nada. I pointed that, even if she did owe them something, no business could stay in business by turning over $20 accounts for collection.
My wife had the benefit of counsel. But I wonder how many recipients of a similar notice without legal knowledge simply caved in out of fear of lawyers and telephone collectors dunning them at all hours. A check for $20 is a small price to pay to be shed of that worry. Multiply that by thousands of letters, and you have a nice subscribership built on peeople who would rather pay a few bucks in the equivalent of blackmail than be sued.
So this is what business has come to nowadays.
Years ago there was a common scam that an unscrupulous business would send you a package — a pair of stockings, say, or a small box of candy — that you did not order. If you opened it, you were obligated to pay the enclosed invoice, which might be 10, 20 or 50 times more than you would pay for a similar item downtown at the nicest department store. The UCC put an end to that by providing that if a merchant sends you merchandise you did not order, it is yours to keep.
At least that is my understanding of the law. I don’t believe our legislature has changed it. Could be that the law was changed in Washington, where corporations that pay the price of admission to the halls of the Capitol have acquired immense power over those who are supposed to represent us, to the extent that now corporations are recognized as being people … as in “We, the people …”
We’re not going to pay the magazine its extortion. I hope many others who receive similar letters recognize this for the scam it is and trash that offensive letter.
Whatever it takes. That seems to be the code of commerce in this age.
Binding a Minor to a Settlement
August 14, 2014 § 4 Comments
Minors can not act for themselves. That creates some obstacles when a minor is injured in an accident, and the insurance company or some other paying party needs a signature on a release to settle the claim.
In Matter of Wilhite: Woolbright v. Wilhite, handed down September 10, 2013, by the COA, 18-year-old Lacey Wilhite had been severely injured in a catastrophic collision with a drunk driver. Her mother, Celeste Sloan, who had custody, filed a petition to be appointed guardian. Lacey’s father, Rodford, with whom Lacey had been living for several years before the accident, in response filed a petition to be appointed guardian and for custody.
The chancellor appointed Rodford as guardian, and authorized him to accept the insurance company’s tender of policy limits in the amount of $100,000. The judge also approved the contract of the attorney for Rodford for a 25% contingent fee. More about that attorney’s fee in a bit.
On appeal, Sloan’s lawyer argued that, even though her contract with Sloan had not been approved by the court, she had a reasonable expectation of compensation from the child’s estate, based on quantum meruit. The COA disagreed. Beginning at ¶11, Judge Fair explained:
Sloan may have been a “natural guardian” of Lacey under Mississippi Code Annotated section 93-13-1 (Rev. 2004), but the chancery court is the “superior guardian.” See Carpenter v. Berry, 58 So. 3d 1158, 1163 (¶19) (Miss. 2011). As the Mississippi Supreme Court detailed in Mississippi State Bar Association v. Moyo, 525 So. 2d 1289, 1293-96 (Miss. 1988), there are three ways to bind a minor in a settlement: (1) removal of the disability of minority, (2) the formal appointment of a guardian, and (3) the chancery court’s approval, without a guardianship, when the claim is worth $25,000 or less (Mississippi Code Annotated section 93-13-211 (Supp. 2012)). It stands to reason that a parent who has no authority to bind her daughter’s estate in a settlement cannot bind the estate to an attorney’s fee contract, particularly when such a contract would have to be, but was not, approved by the chancery court. See UCCR 6.12. In Carpenter, 58 So. 3d at 1163 (¶19) (citation omitted & emphasis added), the supreme court reiterated its longtime holding that:
Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability. This inherent and traditional power and protective duty is made complete and irrefragable by the provisions of our present state constitution. It is not competent for the Legislature to abate the said powers and duties or for the said court to omit or neglect them. It is the inescapable duty of the said court and[/]or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and cannot permit the rights of an infant to be prejudiced by a waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the power of the court to prevent or correct. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and act to the contrary thereof at their peril.
See also Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826-27, 138 So. 593, 595 (1932) (original source) …
You can take away from that that there are no shortcuts in obtaining a release that is binding on a minor. You can either: (1) get the disabilities of minority removed, which you will likely find to be a hard sell; or (2) have a guardian appointed, who can petition the court to approve an on-the-record minor’s settlement; or (3) present the matter as a minor’s settlement not requiring a guardianship, if the settlement amount is below the statutory amount and the chancellor finds it to be in the child’s best interest. That’s it. The parents can not bind the child acting in their capacities as parents without court approval.
Another feature of this case is that both parents hired their own attorneys to take legal action for the benefit of Lacey before a guardianship was established, and neither had their contract approved in advance by the court. The trial court rejected Ms. Sloan’s attorney’s contract, which called for 33 1/3% of the settlement, and approved that of Mr. Wilhite for 25% The chancellor also reduced Sloan’s attorney’s quantum meruit claim to $2,500, despite that she claimed to have invested 125 hours in the case. The COA affirmed
You can read the COA’s rationale for yourself. What is important here is that you appreciate that when you go out on a limb without court approval in a case such as this, you run the risk of recovering nothing or a greatly reduced fee. UCCR 6.12 clearly lays out what is required. Here it is, broken down point by point for clarity:
- Every petition by a fiduciary or attorney for the allowance of attorney’s fees for services rendered shall set forth the same facts as required in Rule 6.11, touching his compensation, and if so, the nature and effect thereof.
- If the petition be for the allowance of fees for recovering damages for wrongful death or injury, or other claim due the estate, the petition shall show the total amount recovered, the nature and extent of the service rendered and expense incurred by the attorney, and the amount if any, offered in compromise before the attorney was employed in the matter.
- In such cases, the amount allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons.
- If the parties make an agreement for a contingent fee the contract or agreement of the fiduciary with the attorney must be approved by the Chancellor.
- Fees on structured settlements shall be based on the “present cash value” of the claim. [Emphasis added]
Before you go crashing off into a case involving a minor’s interest, think through what you are being called on to do, and cover your bases. If you don’t, you might find, much to your chagrin, that you have donated a lot of free work to the youngster.
An Archaicism that Needs to be Fixed
August 13, 2014 § 1 Comment
If one is to follow the statutory scheme as it currently stands in estate matters, here is what one would do after opening an estate:
- Unless waived by the court, warrants of appraisal issue under seal of the court “commanding three or more discreet persons not related to the deceased or interested in the estate” to make inventory and appraisal. Any three or more of the appointees may act. The warrant commands the appraisers to set aside the exempt property and one year’s support “and tuition” for those eligible (MCA 91-7-109 and -111).
- The form of the warrant is provided in MCA 91-7-113.
- The appraisers must report to the court the personal property that is exempt, and “set it apart” to the widow and/or children of the decedent. The court may allow or disallow all or part of the report, with instructions to the appraisers (MCA 91-7-117 and -137).
- Defaulting appraisers may be fined.
- MCA 91-7-93 requires executors and administrators, within 90 days of appointment, to inventory the money of and debts due to the decedent.
I could actually go on, but let me stop here and ask: Who has ever heard of an estate being administered in that fashion in any of our lifetimes?
Most attorneys ask to waive appraisement and work with the fiduciary to arrive at an inventory for the court to approve.
The problem is that, other than the cumbersome 3-headed appraisal procedure stated above, there is no clearcut procedure to determine the exempt property that passes outside the estate. Yes, I said outside the estate. That’s because MCA 91-7-117 specifically states that title of the widow and children to the exempt property vests in them by operation of law upon death of the decedent. DeBaum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 515 (1934).
I think that Title 91, Chapter 7, needs to be rewritten — NOT to import some exotic provisions from other states that would drastically change our Mississippi probate practice — but rather to eliminate some of these archaic, unused, impractical provisions that clutter and confuse our code, and replace them with simple, clear, direct statements that reflect how lawyers and judges actually do business in these matters.
These points at a minimum need to be addressed:
- The code needs to charge the fiduciary with the responsibility to identify and report to the court the exempt property, and to obtain the court’s ruling as soon as possible after opening the estate.
- The 3-appraiser procedure needs to be abolished. When it was adopted in 1848, I am sure it was quite nifty. Today, it would cost a fortune to hire three disinterested persons to investigate the belongings of an individual, determine values, and report to the court not only the items and their values, but determine what is exempt and recommend a year’s support.
A previous post dealing with exempt property and estates is at the link.
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