GAP Act: Guardianship of an Adult, Part I
November 6, 2019 § 4 Comments
Continuing with an overview of the GAP Act.
Section numbers correspond to SB 2828.
Basis for appointment (301):
Court may appoint a guardian “when the respondent lacks the ability to meet essential requirements for physical health, safety, or self-care” because: (1) unable to receive and evaluate information or make or communicate decisions, even with support or technological assistance; or (2) is found to be a person with mental illness or intellectual disability who is incapable of taking care of his or her person.
The court may grant the guardian only those powers necessitated by the limitations and needs of the ward, and must enter “orders that will encourage the development of the ward’s maximum self-determination and independence.
The court must consider any less restrictive alternatives that would meet the needs of the ward.
Petition (302):
May be filed by “chancellor or clerk of the chancery court, any relative or friend, or any other interested party, including the adult for whom the order is sought.
Sworn petition: (1) alleging that the adult is in need of a guardianship; (2) stating the name and address of the attorney representing the petitioner, if any; (3) under the style of the case before the body, the following language must appear in bold or highlighted type:
The relief sought herein may affect your legal rights. You have a right to notice of any hearing on this petition, to attend any such hearing, and to be represented by an attorney.
Notice of hearing (303):
Seven days’ notice to the adult respondent; however, for good cause the court may order shorter notice.
Notice must be given, but “Failure to give notice does not preclude the court from appointing a guardian.”
Unless the court finds that the adult is competent and joins in the petition, notice must be given to: (1) the adult for whom G is sought; (2) any appointed conservator; (3) at least one relative from among those specified in the statute; (4) anyone else directed by the court.
VA must be noticed if the adult is a recipient of benefits.
After appointment, notice of hearing, with a copy of the motion or petition, must be served on the respondent, guardian, and anyone else directed by the court.
GAL (304):
Court may appoint a GAL payable out of the estate of the respondent only if necessary to protect the interest of the adult.
Failure to appoint a GAL does not void the judgment and is not error.
Hearing and Professional evaluation (305):
The court must conduct a hearing to determine whether a G should be appointed, and the judge may appoint a GAL “to present the interests of the respondent”.
The judge determines the number and character of witnesses, but witnesses must include: (1) two licensed physicians, or (2) one licensed physician and either one licensed psychologist, nurse practitioner, or physician’s assistant.
The medical professionals must have personally examined the respondent and completed certificates of the results of examination filed with the chancery clerk and made part of the record. The certificates may be considered by the court, and the professionals may be called as witnesses.
The personal examination may be in person or via telemedicine conforming to MCA 83-9-351.
Nurse practitioner or physician’s assistant must comply with law regarding physician supervision.
Rights at hearing (306):
The respondent may: (1) present evidence and subpoena witnesses and documents; (2) examine witnesses; and (3) otherwise participate.
The proposed guardian must attend unless excused by the court for good cause.
Hearing must be closed for good cause shown on request of the respondent.
The court may allow any person to participate on determining that the best interest of the respondent will be served.
Confidentiality (307):
Record is confidential, but may be accessed by: (1) an adult subject to the proceeding; (2) an attorney designated by the adult; (3) any person subject to notice under Section 309(4).
Any other person may petition the court for access based on good cause. The court may grant access if: (1) in the best interest of the respondent or ward; or (2) furthers public interest; and (3) does not endanger the welfare or financial interest of the respondent or ward.
Report of GAL or professional evaluations may be sealed “when determined necessary by the court.” Even if sealed, the documents will be available to: (1) the court; (2) the respondent or ward; (3) the petitioner, GAL, attorneys for petitioner and respondent for purposes of the proceeding; (4) an agent under POA for health care, unless the court orders otherwise.
Who may be appointed guardian (308):
The court appoints the person in its discretion who is in the best interest of the respondent.
If two or more are considered the court appoints the “best qualified.”
To determine best qualified, the court considers the:(1) person’s relationship with the respondent; (2) person’s skills; (3) the expressed wishes of the respondent, including designation made in a will; (4) durable POA or health-care directive; (5) the extent to which the person and the respondent have similar values and preferences; and (6) the likelihood of the person’s success as a guardian.
The court may decline to appoint the person requesting.
If a qualified guardian cannot be determined, the court may appoint the chancery clerk, unless there is a conflict or other ground for recusal.
Court may not appoint: (1) a person who provides paid services to the respondent; (2) a person employed by a person who provides paid services to respondent; (3) the spouse, parent, or child of a person who provides or is employed to provide paid services to the respondent, unless
(a) the individual is related to the respondent by blood, marriage, or adoption; or (b) the court finds by clear and convincing evidence that the person is best qualified and available, and appointment of such a person is in the respondent’s best interest.
Court also may not appoint an owner, operator, or employee of a long-term-care institution at which the respondent is receiving care unless related to the respondent by blood, marriage, or adoption.
Order (309):
The court order appointing a guardian must include specific findings by clear and convincing evidence that: (1) the needs of the respondent can not be met by a less restrictive alternative, including use of supportive services and technology; and (2) the respondent was given proper notice of hearing.
An order granting full guardianship must state the basis for granting it and findings supporting a conclusion that a limited guardianship would not meet the “functional needs of the ward.”
An order granting limited guardianship must state the specific powers granted to the guardian.
The court’s order must also include contact information for each person entitled to subsequent notices of: (1) rights of the adult under Section 310; (2) change of the ward’s primary dwelling; (3) delegation of powers by the G; (4) the G’s plan; (5) access to court records; (6) death or significant change in condition of the ward; (7) limitation or modification of the G’s powers; and (8) removal of the guardian.
A spouse and adult children of the ward are entitled to notice unless the court directs otherwise for the best interest of the ward.
“If the chancellor finds from the evidence that the person is incapable of taking care of his person, the chancellor shall appoint a guardian over his person.”
“Costs and expenses” of the proceeding are paid by the estate of the ward if a G is appointed. If no estate, or if no guardian is appointed, “costs and expenses” are paid by the petitioner.
Notice of Order (310):
Within 14 days of the order, guardian must serve a copy of the order of appointment on the ward and all other persons given notice under Section 309. The service must include a notice of right to request termination or modification.
Within 14 days of the order the guardian must request the court to give a statement of the rights of the ward and must serve it on all Section 309 persons. The statement must notify the ward of the right to: (1) seek termination, modification, or removal, and to choose an attorney; (2) be involved in decisions about care, dwelling, activities, or social interactions; (3) be involved in health-care decisions; (4) be notified at least 14 days in advance of a change in dwelling, or move to a nursing home or other restrictive facility unless the move is in the guardian’s plan or in a court order; (5) object to a move and the procedure for objecting; (6) communicate visit, and interact with others, unless the court has ordered otherwise; (7) receive a copy of the G’s plan; and (8) object to the guardian’s plan or report.
The guardian may restrict contact by the ward with others if authorized by the court, or if a protective order is in place. If the guardian has good cause to believe that interaction with a specific person would pose a risk of physical, psychological, or financial harm to the ward, the guardian may restrict contact: (1) for not more than 7 business days if the person has a pre-existing family or social relationship with the ward; or (2) for not more than 60 days for others.
Emergency guardianship of adult (311):
Same as that of a minor.
The Albright Score Board
November 5, 2019 § 2 Comments
Too many lawyers consider the judges’ findings on Albright factors to be like some sort of score board. I hear it in R59 motions: “But, Judge, we prevailed in one more factor, so my client should have been awarded custody.” And we see it in appeals, where the losing side argues something similar.
In a recent decision, Judge Jack Wilson of the COA spelled out how the trial and appellate courts are supposed to deal with Albright. Since it’s an excellent, succinct exposition on the law, I thought it would be helpful to include it for your use. This is from the case of Morgan v. Whitehead, handed down October 15, 2019:
¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant question is whether the chancellor’s decision is supported by the evidence, not whether we agree with it. Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).
¶19. In child custody cases, the “polestar consideration . . . is the best interest and welfare of the child.” Albright, 437 So. 2d at 1005. In determining where the child’s best interest lies, the chancellor should consider the following factors: (1) age, health, and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3) parenting skills; (4) willingness and capacity to provide primary child care; (5) both parents’ employment responsibilities; (6) physical and mental health and age of the parents; (7) emotional ties between parent and child; (8) moral fitness; (9) “the home, school and community records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Id.
¶20. Albright does not require the chancellor to award custody to the parent who “wins” the most factors. Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012). “The point of Albright is to identify the custody arrangement that would be in the child’s best interest—not to determine what is in either parent’s best interest or which parent is the better person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). In addition, the chancellor is not required to find that each factor favors one parent or the other. Harden v. Scarborough, 240 So. 3d 1246, 1251 (¶11) (Miss. Ct. App. 2018). The chancellor is only required to consider each factor that is applicable to the case and determine what custody arrangement would be in the child’s best interest. Id. “We review the chancellor’s application of the factors for manifest error, giving deference to the weight that he assigned each factor.” Id.
How Much Leeway does the Trial Judge Have Under a Mandate?
November 4, 2019 § Leave a comment
Chip and Melanie Griner underwent a divorce in which the chancellor rendered a judgment in a consent case, and Chip appealed.
In a 2017 opinion, the COA reversed and remanded for the chancellor to correct errors in calculations, to correct the amount of life insurance securing the award, and for clarification of the length of time Chip was required to maintain health insurance covering Melanie. It also ordered Melanie to pay the costs of appeal. The COA issued its mandate so directing.
On remand, the chancellor revised the equitable distribution and the life insurance and health insurance matters. The chancellor denied a motion by Chip to recover the appeal costs. Chip again appealed.
In Griner v. Griner, decided October 8, 2019, the COA again remanded on the issue of recovery of the appeal costs. Here is how Judge McCarty’s opinion addressed the issue for a unanimous court, with Carlton and Tindell not participating:
¶9. For his first assignment of error, Chip argues that the chancery court should have executed this Court’s mandate assessing all appellate costs to Melanie. As a matter of law this is correct.
¶10. In our 2017 opinion we ordered Melanie to pay all costs of the appeal, and the mandate echoed this language. Griner, 235 So. 3d at 190 (¶35) (“All costs of this appeal are assessed to the appellee.”). A party who disagrees with an assessment of costs issued in an opinion may seek relief through a motion for rehearing under Mississippi Rule of Appellate Procedure 40. See M.R.A.P. 36(d) (“a party seeking relief may file a motion for rehearing under Rule 40”). If the mandate issues with a requirement to pay costs, our rules likewise allow a motion to retax costs, which must be filed within fourteen days of the issuance of the mandate. Id.
¶11. While Chip filed a motion for rehearing, Melanie did not. After the Supreme Court denied a request for certiorari review, the mandate was issued. Melanie did not ask for the costs to be retaxed.
¶12. The mandate is an order of this Court which must be followed without deviation. Relying upon a basic definition of the word, the Supreme Court has held it is “[a] command, order, or direction” which, once given, a “person is bound to obey.” Denton v. Maples, 394 So. 2d 895, 897 (Miss. 1981). This “judicial command” directs a lower court “to enforce a judgment, sentence, or decree.” Id. Coupled with the opinion, the mandate is how we communicate with trial courts. “It is inherently necessary that this Court have some method of advising the lower court of the action taken here; under our practice the method used is the mandate.” Edmonds v. Delta Democrat Pub. Co., 221 Miss. 785, 787-88, 75 So. 2d 73, 74 (1954). Because it is to be followed without deviation, “[t]he trial court may not receive any other intelligence of the action of this Court.” Id.
¶13. The procedure following the mandate must be followed strictly. “Upon issuance of our mandate, the trial court simply proceeds to enforce the final judgment.” Collins v. Acree, 614 So. 2d 391, 392 (Miss. 1993). There is no discretion whether to follow a mandate, because “[t]he execution of the mandate of this Court is purely ministerial.” Id. Indeed, the Supreme Court has ruled that any order which is contrary to the mandate is actually outside the jurisdiction of a trial court, and will be held “a nullity and void ab initio.” Denton, 394 So. 2d at 897. [Fn 2]
[Fn 2] 2 Note that while the mandate must be strictly followed, there remains the opportunity to later dive into what costs were actually incurred or should be paid per the mandate, since a party “who seeks relief as to any other matter involving costs shall seek relief in the trial court.” M.R.A.P. 36(d).
¶14. After remand, Chip filed a motion for recovery of appeal costs. Our rules explicitly allow recovery of “[c]osts incurred in the preparation and transmission of the record, the costs of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the appeal . . . .” M.R.A.P. 36(c). Because the original appeal included a money judgment, there was a supersedeas bond, and the trial court required it to be one million dollars. The bond carried a $20,000 premium. On remand, Chip requested these premium costs, the docket fee of $200, and a prepayment for record preparation, for a total of $41,200. The request did not seem to be fully formed, as Chip alleged some further bond premium might need to be paid pro rata, and the final record cost was not included. Nonetheless, the motion included exhibits reflecting the two bond premiums.
¶15. Melanie did not respond to the motion at all. The trial court did not make a lengthy ruling on the issue. Instead, its Findings of Fact and Conclusions of Law Following Remand noted in its last line that “All other requests for relief not granted are denied.”
¶16. The chancery court did not have discretion to ignore the mandate. The mandate issued on February 15, 2018, and has to this point not been followed. In accord with our longstanding precedent, we reverse and remand for immediate compliance with the original mandate. Per the mandate for the original appeal, and in accord with the procedures set out in Rule 36, Chip is entitled to all costs for the original appeal.
Pretty clear in this case. The only catch is that sometimes you have to scratch your head over exactly what it is the appellate court is directing to be done.
“Quote Unquote”
November 1, 2019 § Leave a comment
“Be assured that if you knew all, you would pardon all.” — Thomas à Kempis
“There is hunger for ordinary bread. And there is hunger for love for kindness, for thoughtfulness; and this is the great poverty that makes people suffer so much.” — Mother Teresa
“If we could read the secret history of our enemies, we would find in each man’s life sorrow and suffering enough to disarm all hostility.” — Henry Wadsworth Longfellow
Third-Party Custody with a Twist
October 30, 2019 § 2 Comments
When the Ballards, Candice and Marshall, were divorced from each other, the chancellor awarded custody to Marshall’s parents based on hearsay evidence. The MSSC reversed and remanded in Ballard v. Ballard, 255 So. 3d 126 (Miss. 2017).
On remand the chancellor awarded custody of the parties’ three children to Marshall. The catch is that Marshall is not the biological father of the youngest child, Jill, who was the product of a marital-separation affair. Candice appealed, arguing that she should have prevailed as to Jill based on the natural-parent presumption.
The MSSC affirmed in Ballard v. Ballard, decided August 29, 2019. Justice Beam wrote for the court:
¶12. … [Candice] argues that Marshall’s having acted in loco parentis for Jill was not enough to overcome the natural-parent presumption with regard to Candice’s custody of Jill. [Fn omitted] Candice correctly states that “[t]he law recognizes that parents are the natural guardians of their children, and ‘it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’” Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013) (quoting In re Dissolution of Marriage of Leverock and Hamby v. Leverock, 23 So. 3d 424, 429 (Miss. 2009)).
However, the presumption in favor of the parent may be rebutted by clear and convincing evidence that “(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. (citing Smith, 97 So. 3d at 46).
Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. (citing Smith, 97 So. 3d at 46).
¶13. Candice contends that this case is controlled by In re Waites v. Ritchie, 152 So. 3d 306 (Miss. 2014). In Waites, the mother sought to modify a custody agreement. Id. at 307. She subsequently notified T.J., her child’s biological father who had joined her petition seeking custody. Id. Although her husband, Scott, had cared for the child from the beginning, the chancellor excluded Scott from the Albright consideration because he was not a natural parent; the chancellor awarded full custody to the mother. Id. However, the chancellor allowed Scott and T.J. visitation. Id. Scott appealed, and the Court of Appeals reversed and remanded, finding that Scott should have been considered on equal footing with the natural parents. Id. The mother and T.J. filed a petition for a writ of certiorari, which this Court granted. Id. This Court found that the chancellor had properly excluded Scott from consideration. Id.
¶14. Candice further argues that the chancellor erroneously relied on a Court of Appeals case, Welton v. Westmoreland, 180 So. 3d 738 (Miss. Ct. App. 2015), to support awarding Marshall custody of Jill. In Welton, the natural father sought a modification of custody of his daughter Alexice and subsequently amended his complaint to seek custody of his daughter Justice. Id. at 740. Although Daniel was not Justice’s biological father, she believed he was until she was twelve years old. Id. Her biological father abandoned her and, after her birth, had never made an attempt to see her. Id. While Daniel knew he was not Justice’s biological father, he raised her like she was his own from the time she was four months old. Id. Further, Justice’s mother requested that Justice retain Daniel’s last name. Id.
¶15. In determining custody of Justice, the court acknowledged that,
[i]n general, the natural parent presumption precludes a court from granting custody to a “third party” over the objection of a natural parent absent clear and convincing evidence that the natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent. Id. at 744. “The chancellor did not find that any of the grounds for overcoming the natural parent presumption had been established,” but he did find that, “on the ‘unique’ facts of this case, Daniel ‘stands in the place of a natural parent for purposes of custody of Justice.’”Id.
¶16. Welton relied upon two Supreme Court cases, Griffith v. Pell and J.P.M. v. T.D.M., for guidance. While the facts in Pell and J.P.M. vary slightly from the facts in Welton, the Court of Appeals appropriately extended the reasoning in those cases to apply to Welton, and, we find that the same principles apply to the present case. In Pell, as discussed in Welton, this Court held that “a husband who learned during divorce proceedings that he was not the biological father of a child born just prior to the marriage could be granted visitation and, custody over the objections of his wife (the child’s mother).” Id. at 745 (citing Griffith v. Pell, 881 So. 2d 184, 185-87 (Miss. 2004)). Moreover, as discussed in Welton, in J.P.M., this Court “affirmed an order granting custody to a husband who had learned during divorce proceedings that he was not the biological father of a child born to the marriage” because “[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to rebut the natural parent presumption.” Id. (citing J.P.M. v. T.D.M., 932 So. 2d 760, 762-70 (Miss. 2006)).
¶17. This Court reasoned in both Pell and J.P.M. that the natural-parent presumption had been overcome based on several facts:
(1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support (“with the burden should go the benefit”); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively. Id. (quoting Waites, 152 So. 3d at 312).
¶18. In Welton, the Court of Appeals found that the facts necessary to overcome the natural-parent presumption were present but questioned whether the facts were sufficient to place Daniel in the position of a natural parent for purposes of Justice’s custody because Daniel had not been defrauded like the fathers in Pell and J.P.M. Id. at 747.
¶19. Welton held, “although the relevant Supreme Court decisions do not directly address the unique facts of this case, Pell’s reasoning and Waites’s emphasis on whether the biological father is ‘really in the picture’ are instructive and should control.” Id. “[T]he mere existence of a biological father who abandoned a child years ago should not be used ‘to defeat an existing father-child relationship when [that] biological father [is not] seeking to assume care, support and nurturance of the child.’” Id. (alterations in original) (quoting Pell, 881 So. 2d at 187). The mother led Justice to believe that Daniel was her father and confirmed that Justice’s biological father had abandoned her at birth. Therefore, the Welton court affirmed the chancellor, who had found “that Pell and subsequent Supreme Court decisions provided legal authority to grant physical custody of Justice to Daniel.” Id. at 748.
¶20. Welton logically extended the principles articulated in Pell and J.P.M.. The unique facts of Welton—allowing an in loco parentis figure to have custody—also are present here. There was no question that Marshall acted in loco parentis to Jill. Further, the trial court’s in loco parentis finding was neither raised as an issue on appeal nor was it overturned by the appellate court in Ballard.
¶21. Marshall always supported, cared for, and treated Jill as his own child, even though he knew she was not his biological child. Candice concedes that Marshall has always provided for Jill, as he did for John and Jane. She admitted even that Marshall is the only father Jill has ever known. Further, no evidence was presented that Candice sought support of Jill from the biological father. In fact, the biological father received notice of the hearing and did not attend, nor has he ever attempted to visit or to support Jill. It is clear that the biological father is absent.
¶22. Lastly, Candice argues that Welton is both distinguishable and predates this Court’s ruling in Miller v. Smith, 229 So. 3d 100 (Miss. 2017). This Court finds, however, that the facts of Miller are dissimilar. There, the Court found that the circumstances did not give Miller in loco parentis status. Miller, 229 So. 3d at 105. Miller had been sentenced to prison for eighteen months when the minor child, Smitty, was only a few months old. Id. at 104. After prison, Miller did not remain a constant in Smitty’s life. Id. Miller provided no financial assistance to Smitty, nor did he visit Smitty while his mother was in prison during 2012 and 2013. Id. Therefore, Miller did not rebut the natural-parent presumption, and the Court found substantial evidence in the record to support the chancellor’s conclusion that Miller did not stand in loco parentis. Id. at 104-105.
¶23. Accordingly, this Court finds that the chancellor appropriately held that custody of Jill could be awarded to Marshall pending an Albright analysis.
Justice Maxwell added a specially concurring opinion, joined by Randolph, Beam, Chamberlin, and Griffis, that concludes, “Here, I concur with the majority to the extent it backs away from the strong language in Waites and reaffirms Pell and T.D.M.’s holding that, under unique circumstances like these, a nonbiological parent’s in loco parentis status can be used to reach an Albright custody analysis without having to first rebut the natural-parent presumption.”
GAP Act: Guardianship of a Minor, Part II
October 29, 2019 § 1 Comment
Continuing with the GAP Act summary. Section numbers correspond to SB 2828.
Duties of guardian for a minor (208):
Guardian is a fiduciary. Duty to act in ward’s best interest and exercise reasonable care, diligence, and prudence.
Except as limited by the court, guardian has duties of a parent with regard to the minor’s support, care, education, health, safety, and welfare.
Guardian is required to: (1) become personally acquainted with the minor and report to the court “the minor’s abilities, limitations, needs, opportunities, and physical and mental health”; (2) take reasonable care of the minor’s personal effects and file for conservatorship if necessary to protect other property of the minor; (3) expend funds of the minor for minor’s needs for support, care, education, health, safety, and welfare; (4) conserve any funds not needed for necessities for future needs, or pay such funds to any appointed conservator; (e) report the condition of the minor to the court as directed; (f) inform the court of any change in the minor’s address; (g) take into account the minor’s preference in determining what is in the minor’s best interest.
Powers of a guardian (209):
Except as limited by the court, a guardian has all of the powers of a parent regarding the minor’s support, care, education, health, safety, and welfare.
Except as limited by the court, a guardian may: (1) apply for and receive funds for support of the minor (up to limits in Section 431); (2) take custody of the minor and establish a dwelling place in or outside the state; (3) commence proceedings to compel a person to support the minor, unless a conservator has been appointed; (4) consent to health or other care, treatment or service of the minor; (5) reasonably delegate decision-making, including delegation to the minor if reasonable.
If the minor has no parent, the court may authorize the guardian to consent to adoption of the minor or to marriage of the minor.
Removal of guardian; Termination of guardianship; Successor guardian (210):
Guardianship terminates: (1) at minor’s death, adoption, emancipation, attainment of majority, or on a date set by the court; or (2) when the court finds that the conditions of Section 201 are not satisfied, unless the court finds that termination would be harmful to the minor and the minor’s interest in continuing outweighs the parent’s right to restoration of decision-making.
A ward or “any party” may petition the court to terminate or modify the guardianship, or to remove the guardian and appoint a successor.
Petitioner must give notice to: (1) the minor if over age 14 and is not the petitioner; (2) the guardian; (3) each parent; (4) any other person determined by the court.
If a successor is appointed, notice of the appointment mus be given within 30 days to: (1) the ward if over age 14; (2) each parent; (3) any other person determined by the court.
When terminating, the court may make any order for transitional arrangements that are in the best interest of the minor.
Removed guardian must cooperate with the successor to facilitate transition and for best interest of the minor.
The Lawyer’s Duty Until the Order Allowing Withdrawal
October 28, 2019 § Leave a comment
As I mentioned here not long ago, filing a motion to withdraw does not get you out of the case. You are in it until the judge signs an order allowing withdrawal and the order is entered. You can read that post here.
Here is what the MSSC said about it:
We take this occasion to announce to the bench and bar and the state of Mississippi at large that any time an attorney undertakes to represent a client in any court of record in this state that there attaches at that moment a legal, ethical, professional and moral obligation to continue with that representation until such time as he is properly relieved by the court of record before whom he has undertaken to represent a client. This is true regardless of the circumstances under which his representation of that client may be terminated. This withdrawal may be accomplished only by the filing of a motion with the court with proper notice to the client. The attorney may then withdraw upon the entry of a written order by the court granting him leave to withdraw from representation of his client.
Myers v. Miss. State Bar, 480 So. 2d 1080, 1092-93 (Miss. 1985).
So, what if your client fires you? Do you get to simply walk away? No. You must first file a motion to withdraw, set it for hearing, and notice your client; or get your client to join in the motion. If opposing counsel doesn’t object, get her to sign an agreed order. If there is an objection by anyone, bring it on for hearing. Unless and until the judge signs an order letting you withdraw, you are in the case with every ethical and professional duty to your client. In Alexander v. Miss. Bar, 725 So. 2d 828, 831 (Miss. 1998), the court said, “A lawyer who improperly fails to withdraw after being discharged or when withdrawal is otherwise required is, in general, subject to professional discipline and, in litigation matters, to sanctions imposed by the tribunal … .”
What do you do if another attorney enters an appearance on your side of the case and it appears, but is not clear, that your client no longer wants to deal with you? Can you just stop participating? No. Unless and until you go through the procedure above you continue to have every ethical duty to that client.
What if you discover that mandatory withdrawal is required, such as when further representation would result in violation of ethical rules or the law? Can you stop representing the client? No. You must file a motion and obtain an order. Unless and until you do, you continue to have every ethical duty to that client. Alexander, supra.
And keep in mind that even though you may have have disengaged from the client in your mind, you may have to continue representation if the court disapproves your request. “[T]he lawyer may not withdraw when the lawyer holds the stated belief of a significant disproportion between the detrimental effects that would be imposed on the client by the contemplated withdrawal against detrimental effects that would be imposed on the lawyer or others by continuing the representation.” Restatement (Third) of the Law Governing Lawyers, § 32, cmt a.
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The authority cited is from Jackson and Campbell, Professional Responsibility for Mississippi Lawyers (2010), § 7.5.
The Better Chancery Practice Blog 