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.
_______________________
The authority cited is from Jackson and Campbell, Professional Responsibility for Mississippi Lawyers (2010), § 7.5.
Reprise: Draftsmanship is Part of Your Job
October 22, 2019 § Leave a comment
Reprise replays posts from the past that you might find useful today.
Say What You Mean and Mean What You Say
January 4, 2016 § 1 Comment
Lee and Leslie Voulters were divorced from each other in 2004 on the sole ground of irreconcilable differences. The divorce judgment incorporated their PSA, which provided that Lee would pay Leslie lump-sum alimony in the sum of $1.08 million at the rate of $10,000 a month until paid in full. He also agreed to maintain a policy of life insurance on his life with a benefit of $1.08 million, with Leslie as beneficiary.
When Leslie filed a contempt action in 2013 charging Lee with missing some lump-sum payments and with failing to provide proof of life insurance, Lee counterclaimed, asking the court to interpret the PSA that the purpose of the life insurance was to protect Lee’s payment of lump-sum alimony, and that the obligation would terminate when the lump-sum alimony was paid in full.
Spoiler alert: There is no provision in the PSA that links the life insurance requirement to the lump-sum-alimony requirement.
Here are the pertinent parts of the agreement:
LUMP SUM ALIMONY/SPOUSAL SUPPORT
Lee shall pay spousal support to Leslie, in the form of lump sum alimony, the total sum of $1,080,000.00, payable in monthly installments of $10,000.00 each for a period of nine years. Such payments for support shall be due and payable by automatic bank transfer from Lee’s checking or other account directly into Leslie’s checking account, commencing on the fifth day of April, 2004, and shall so continue for one hundred and seven consecutive months thereafter. Lee’s obligation to pay such support to Leslie shall be fully vested upon the entry of a Final Judgment of Divorce in this cause, and shall not be modifiable. Lee’s obligation to pay such support shall not terminate upon Leslie’s death or remarriage, nor shall it terminate upon Lee’s death. However, despite the conventional definition of lump sum alimony[,] . . . these payments by Lee to Leslie under this Agreement shall be taxable to Leslie, and deductible by Lee, for state and federal income tax purposes.
LIFE INSURANCE
Lee agrees to maintain life insurance on his own life in an amount not less than one million, eighty thousand dollars ($1,080,000.00), naming Leslie as primary beneficiary thereon. Proof of such insurance coverage shall be furnished to Leslie within fifteen (15) days following the date of execution of this Agreement. Furthermore, Lee shall direct his insurance carrier to provide coverage information to Leslie at least twice a year if requested by Leslie.
. . . .
EFFECT OF AGREEMENT
. . . .
The respective rights and obligations of the parties hereunder are deemed independent and may be enforced independently irrespective of any of the other rights and obligations set forth herein. This Agreement contains the entire understanding of the parties, who hereby acknowledge that there have been and are no representations, warranties, covenants, or understandings other than those expressly set forth herein.
RELEASE AND WAIVER
Subject to the provisions of this Agreement, each party has released and forever discharged . . . his or her heirs, legal representatives, Executors, Administrators, and assigns . . . from all causes of action, claims, right or demands . . . in law or in equity . . . except . . . causes of action for divorce or separation action now pending . . . . Each party releases, waives, and relinquishes any and all rights . . . to share in the estate of the other party upon the latter’s death . . . . (Emphasis added.)
Both parties offered testimony about their intent in negotiating the language into the agreement. Lee argued that the agreement was ambiguous because it had no termination date. Leslie argued that she negotiated it for support, which she needed because her estate was meager in comparison to Lee’s.
One question before I tell you how the chancellor ruled: do you see anywhere in that language quoted above any link between the life insurance obligation and the lump-sum alimony?
The chancellor ruled that the agreement was unambiguous, and that it did require Lee to maintain the life insurance regardless of the status of the lump-sum payments. Lee appealed.
On December 8, 2015, the COA affirmed in Voulters v. Voulters. The opinion by Judge Barnes includes a nice recitation of the law of contract interpretation, life insurance and insurable interests, and even attorneys fees in contempt actions and on appeal. I definitely commend it to your reading.
What I want to focus on here is this: If you want your agreement to mean a particular thing, then make sure there is language in it that says that particular thing. Remember that when the judge is called on to interpret a contract, she is bound by the language within the four corners of the document, and she may not accept parol evidence to vary or “explain what the parties meant” by those terms unless she first finds the agreement to be ambiguous. Just because Lee did not include a termination date for his life insurance obligation, that did not render the agreement ambiguous. It rendered instead the meaning that it had no termination date. In other words, it meant exactly what it did and did not say.
Be careful in your draftsmanship. Take time to make sure it says exactly what your client needs it to say. I think I was saved a hundred times or more by the simple practice of drafting the agreement and setting it aside for at least a day. I would then pick it up and read it afresh, often catching something that could be read two ways, or was simply not clear enough to do the job. Sometimes I would imagine myself to be another person altogether, looking at it as an outside observer. Anything to get an objective perspective.
Remember that some day someone entirely unconnected with the negotiations and the emotion of the divorce case is going to be reading your work with absolutely none of the knowledge that you had when you drafted it. It may be a judge, or it may be another lawyer having to represent your client, or — heaven forbid — a lawyer looking for a cause of action against you. That’s why it’s critical when you draft an agreement to give some thought and care to the words, phrases, and language construction that you use. That’s what your client is paying you for: to have absolutely no more trouble out of this matter after the final judgment is entered.
R.I.P. Attorney William E. Ready, Sr.
October 21, 2019 § 2 Comments
William E. Ready, Sr., 1933-2019.
Many of you knew Bill Ready, Sr. as an irascible, outspoken, sometimes rough-edged, always humorous character with an unmatched collection of idiosyncrasies. Those of us who dealt with him more closely discovered that beneath his bluff exterior was a generous heart that embraced and touched many, particularly the less fortunate.
During the Civil Rights Era, Bill stood for right, and helped activists plan and accomplish their work for freedom. He stood up to the Klan. He represented those whom no one else would. Here is a Meridian Star article from a couple of years ago that touches on his history.
Bills trademark bolo tie no doubt will be retired. There’s no one at the bar worthy to wear it, anyway. We’ll miss him.
Travelogue: Avery Island
October 18, 2019 § 3 Comments
Avery Island, Louisiana. Home of Tabasco.
(Click on any picture for a larger image)
GAP Act: Guardianship of a minor, Part I
October 16, 2019 § Leave a comment
Continuing with our look at the GAP Act. Section numbers correspond to SB 2828.
Basis (201):
A person becomes guardian of a minor only by court appointment.
A minor without a guardian may have one appointed if the court finds it to be in the child’s best interest and: (1) the parents consent after being informed of the nature and consequences of guardianship; or (2) all parental rights have been terminated; or (3) there is clear and convincing evidence that no parent is willing to exercise the powers to be granted to the guardian.
Petition (202):
Must include UCCJEA information.
Must also include: (1) name and address of an attorney for the parents; (2) the reason why G is sought and why it would be in the child’s best interest; (3) name and address of the proposed guardian and why that person should be selected; and (4) a general statement of the property of the minor and an estimate of its value.
Notice of hearing (203):
Court sets date, time, and place for hearing.
Notice of hearing served not less than seven days before hearing on each of the following who is not a petitioner: (1) the minor if age 14 or older at the time of the hearing; (2) each parent, or if none or not to be found after reasonable diligence, the nearest adult kin found with reasonable diligence; (3) any adult with whom the minor resides; (4) each individual who had “primary care or custody” of the minor for at least 60 days during the 6 months preceding filing of the petition; and (5) any other person directed to be served by the court.
Under the style and before the body of the petition, 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.
If it is not possible to serve process on the minor per MRCP 4, the court may appoint a GAL to receive notice.
Appointed attorney (204):
The court may appoint an attorney for the minor if: (1) requested to do so by a minor 14 years or older; or (2) recommended by a GAL; or (3) The court determines that the minor needs representation.
Rights at hearing (205):
The court shall require the minor to attend the hearing.
The minor shall be allowed to participate unless the court determines by clear and convincing evidence that: (1) the minor consistently refuses after being advised of the right to attend; or (2) a minor 14 years or older refuses to attend after being informed of the potential consequences of failing to do so; or (3) there is no practicable way for the minor to attend; or (4) the minor lacks ability or maturity to participate meaningfully; or (5) attendance would be harmful to the minor.
Order (206):
The court may appoint, dismiss, or take any other action consistent with law.
In appointing a guardian, the following apply: (1) the court will act consistent with a will “or other record” unless contrary to the best interest of the child; (2) If different parents nominate different guardians, then the court will appoint the one in the best interest of the child, unless none is in the best interest; (3) if no guardian is appointed under the above, then the person nominated by a child over age 14, unless not in the child’s best interest; and (4) if the child’s nominee is not in the child’s best interest, then a person whose appointment is in the child’s best interest.
The court may limit or expand the powers of the guardian “In the interest of maintaining or encouraging involvement by a minor’s parent in the minor’s life, developing self-reliance of the minor, or for other good cause.” The court may do so at the time of appointment or later.
The order shall state the rights retained by any parent, including contact or visitation, or decision-making relating to health care, education, or other matter, or access to records.
The order shall also state that each parent is entitled to notice that: (1) the minor’s residence location has changed; (2) the court has modified or limited the powers of the guardian; or (3) the court has removed the guardian.
Emergency guardian (207):
On a petition filed by any person “interested in a minor’s welfare,” or on a Section 202 petition, the court may appoint an emergency guardian if the court finds: (1) appointment is likely to prevent substantial harm to the minor’s health, safety, or welfare; and (2) no other person appears to have authority and willingness to act.
Duration not to exceed 60 days, and may be extended once for not more than 60 days if the court finds that the conditions continue.
The guardian may exercise only the powers specified in the order appointing.
The court may appoint an emergency guardian with notice or without notice.
With notice. “Reasonable notice” of the date, time, and place of the hearing” must be given to: (1) the minor if 14 or older; (2) any attorney appointed under Section 204; (3) each parent; (4) any person other than a parent having care or custody of the child; and (5) any other person the court determines.
Without notice. Only if the court determines from affidavit or testimony that the minor’s health, safety, or welfare will be substantially harmed before a hearing could be held. If an emergency guardian is appointed without notice, then notice of the appointment must be given within 48 hours to all of the persons who would have been entitled to notice if notice were given. The court must give a hearing to any person who objects to the appointment or its continuation within 5 days of the objection or other contest. AND not later than 5 days after the appointment the court must hold a hearing “on the appropriateness of the appointment.”
Appointment of an emergency guardian is not a determination that basis exists for appointment of a guardian under Section 202.
The court may remove an emergency guardian at any time.
The emergency guardian must make any report that the court requires.
Authentication of an Acknowledgment of Paternity and the Notary’s Duty to Record
October 15, 2019 § 1 Comment
When Lora Ledet was 8 or 9 months pregnant, she began dating Spencer Diaz. When her son was born no father was listed on the birth certificate, and the child’s surname was that of his mother.
Lora and Spencer began living together, and, in April, 2014, an acknowledgment of paternity was filed per MCA 93-9-28 showing Spencer as the child’s father. The Department of Vital Records issued a revised birth certificate showing Spencer as the father and changing the child’s last name to Diaz.
After Lora and Spencer separated in October, 2015, DHS filed a complaint for child support. Spencer answered that the complaint was the first knowledge he had that he had been added to the child’s birth certificate, and that the acknowledgment was a forgery. He asked the court to disestablish paternity and terminate parental rights. Following a hearing, the chancellor denied him relief.
Spencer appealed, and two issues he raised were that the chancellor erroneously admitted the acknowledgment into evidence, and that its notarization was ineffective due to the notary’s failure to record the transaction.
On September 10, 2019, the COA affirmed in Diaz v. DHS and Ledet. Judge Westbrooks first laid out the standard to be applied when reviewing a trial judge’s ruling on admissibility of evidence:
¶6. “The admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So. 2d 742, 749 (¶29) (Miss. 2001) (citing Smith v. Jones, 654 So. 2d 480, 486 (Miss. 1995)).
She then turned her attention to Spencer’s arguments on admission of the document into evidence and notary’s record-keeping:
¶7. Under Mississippi Code Annotated section 41-57-9 (Rev. 2013), “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”
¶8. Moreover, the simple acknowledgement of paternity form was submitted in accordance with Mississippi Code Annotated section 93-9-28. There is a method for an alleged father to voluntarily acknowledge a child as his own. In In re Estate of Farmer ex rel. Farmer, 964 So. 2d 498, 499-500 (¶4) (Miss. 2007), the Mississippi Supreme Court held that “Mississippi Code Annotated Section 93-9-28 (Rev. 2004) establishes a procedure by which the natural father of a [child born out of wedlock] may voluntarily acknowledge the child as his own.” “[T]he execution of [an] acknowledg[]ment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Id. (alteration in the original). Section 93-9-28(1) provides:
The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.
¶9. Here, Diaz maintains that the notary’s failure to have the parties sign the book under Mississippi Code Annotated section 25-33-5 (Rev. 2010) prohibits the admittance of the acknowledgment and reissued birth certificate. This Code section provides that “[e]very notary public shall keep a fair register of all his official acts, and shall give a certified copy of his record, or any part thereof, to any person applying for it and paying the legal fees therefor.” The statute requires only that the notary keep a record of all of [the] official acts. The section does not outline how to maintain that record. But Title 1 of the Mississippi Administrative Code, part 5, rule 5.16(B) (Nov. 30, 2011) provides that “[i]f the principal is not personally known to the notary, the notary may require, the signature of the principal . . . .” (Emphasis added).
¶10. Our Mississippi Supreme Court has held that the mere failure to strictly follow form will not render an acknowledgment void. See Estate of Dykes v. Estate of Williams, [Fn omitted] 864 So. 2d 926, 931 (¶20) (Miss. 2003); see also in re Jefferson, No. 11-51958-KMS, 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (holding that Mississippi Code Annotated section 25-33-5 (Rev. 2010) does not indicate that a notarization not properly recorded in the notary’s log book is void, nor does it indicate that the notarized document is rendered defectively acknowledged due to the recordation failure).
¶11. In accordance with Mississippi caselaw, we find that lack of logbook entry does not deem the acknowledgment void. The chancery court considered all the testimony presented during the trial and followed the statutory procedures set forth in admitting the documents into evidence. Accordingly, we find no error.
A couple of thoughts:
- Paragraph 6 is a reminder that it is awfully tough to reverse a chancellor on admission of evidence in a bench trial, which is understandable because there is no jury to protect from harmful influences.
- The most complicated aspect of this case is the confuseration of spelling between “acknowledgment” and “acknowledgement.” Both are correct; however, the version with no “e” after the “g” is the preferred American usage, and the other is preferred in the UK, like “judgment” (American) and “judgement” (British).
What it Takes to Prove HCIT
October 14, 2019 § Leave a comment
Cobbling together enough evidence and corroboration to meet your burden of proof in an habitual cruel and inhuman treatment (HCIT) case can be quite a challenge.
In the COA’s recent case, Littlefield v. Littlefield, appellant Eddie Littlefield argued that the chancellor erred in granting his wife Brooke a divorce on the ground. The COA affirmed in a decision handed down August 27, 2019. Judge Tindell’s opinion first set down the legal standard for HCIT:
¶8. Eddie first argues that the chancellor erred in granting a divorce in favor of Brooke on the ground of habitual cruel and inhuman treatment. Mississippi Code Annotated section 93-5-1 (Rev. 2018) allows a chancellor to grant a divorce based upon habitual cruel and inhuman treatment. Divorce is properly granted upon this ground if the claimant establishes, by a preponderance of the evidence, conduct that either:
(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or
(2) is so unnatural and infamous as to render the marriage revolting to the non-offending spouse, making it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.
Alexander v. Alexander, 95 So. 3d 696, 699 (¶9) (Miss. Ct. App. 2012) (citing N. Shelton Hand, Mississippi Divorce, Alimony and Child Custody § 4:12 (2d ed. Supp. 1991)). In addition, there must be a causal connection between the treatment and the actual or threatened harm to the claimant’s health or well-being. Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986); see also Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992); Farris v. Farris, 202 So. 3d 223, 232 (¶33) (Miss. Ct. App. 2016). To establish such a causal connection, there must be some corroboration to the moving party’s testimony of the offensive conduct, except in cases of isolation. Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). Evidence of something more than “mere unkindness, rudeness, petty indignities, frivolous quarrels, incompatibility or lack of affection” is required to establish habitual cruel and inhuman treatment. Id. at 469 (¶9).
There follows five pages in which the court recites the evidence at trial supporting the chancellor’s findings.
As for Eddie’s arguments that Brooke had failed to offer sufficient corroboration, the court said:
¶18. Eddie asserts that Brooke’s testimony lacked corroborating evidence. But the testimony of Jean, Erhart, and Eddie himself corroborated the vast majority of Brooke’s allegations. We have held that a claimant’s corroborating evidence “need not be sufficient in itself to establish the ground, but rather, need only provide enough supporting facts for a court to conclude the [claimant’s] testimony is true.” Williams v. Williams, 224 So. 3d 1282, 1287 (¶15) (Miss. Ct. App. 2017). In this case, the chancellor was provided more than enough testimony and evidence to corroborate Brooke’s testimony.
And finally, with regard to the sufficiency of the evidence, the court said:
¶19. Eddie also argues that the evidence provided at trial was insufficient to prove habitual cruel and inhuman treatment by a preponderance of the evidence. As the trier of fact, the chancellor “evaluates the sufficiency of proof based on the credibility of the witnesses and the weight of their testimony.” Rawson v. Buta, 609 So. 2d 426, 431 (Miss. 1992). Divorces based upon habitual cruel and inhuman treatment are necessarily fact-intensive and require a case-by-case analysis. James Shelson, Mississippi Chancery Practice § 38:5 (2019). The chancellor must dually focus on both the alleged conduct of the offending spouse as well as the impact of that conduct on the complaining spouse and the marriage. Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012). Upon review, we “must employ a subjective standard,” rather than an ordinary, reasonable person standard, understanding that the impact of the conduct on the complaining spouse is crucial. Harmon v. Harmon, 141 So. 3d 37, 42 (¶16) (Miss. Ct. App. 2014) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)).
¶20. Eddie correctly argues that a more extreme set of facts is required than a showing of “mere unkindness, rudeness, and incompatibility.” Reed v. Reed, 839 So. 2d 565, 570 (¶19) (Miss. Ct. App. 2003). But “our supreme court has specifically noted that ‘[t]here are many kinds of acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.’” Rakestraw v. Rakestraw, 717 So. 2d 1284, 1288 (Miss. Ct. App. 1998) (citing Savell v. Savell, 240 So.2d 628, 629 (Miss.1970)). Also, abusive conduct that is routine and continuous suffices to meet the requisite burden. Lomax v. Lomax, 172 So. 3d 1258, 1261 (¶6) (Miss. Ct. App. 2016); see also Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972) (The “conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity present itself.”). For example, in Harmon, the offending spouse’s conduct included continuous sexual degradation, cursing and yelling, jealousy and constant accusations of infidelity, irrationality, and habitual name-calling. Harmon, 141 So. 3d. at 40 (¶¶5-11). Because the cumulative effect of the offending spouse’s behavior constituted cruelty, we upheld the chancellor’s judgment of divorce. Id. at 42 (¶17).
GAP Act: General Provisions, Part II
October 9, 2019 § Leave a comment
Section numbers correspond to SB 2828.
Death, removal, or resignation (112):
Appointment terminates on death, removal, or resignation.
Resignation is effective only when approved by the court.
Death, removal, or resignation does not affect liability or duty to account.
Notice of Hearing (113):
Per MRCP 81.
Also: “Notice of hearing under this act must be in at least sixteen-point font, in plain language, and, to the extent feasible, in a language in which the person to be notified is proficient.”
Any person “interested in the ward’s welfare” may file a motion to intervene per MRCP 24.
Waiver of notice (114):
Any person entitled to notice, except the respondent or ward, may waive notice personally or by attorney.
GAL (115):
The court may appoint a GAL.
The GAL may not be the same person as the respondent’s attorney.
Request for notice (116):
Any person not otherwise entitled to notice may file a request showing the person’s interest and an address for notice. If the court approves, that person will be entitled to all future notices.
Disclosure of bankruptcy and criminal history (117):
Before appointment, person applying to be guardian or conservator must disclose to the court: (1) whether the person has ever been a debtor in bankruptcy, insolvency, or receivership; and (2) whether ever convicted of a felony, or a crime involving “dishonesty, neglect, violence, or use of physical force, or any crime relevant to the functions of guardian or conservator.
Compensation (118):
Attorney may be awarded fees and expenses after approval by the court.
Compensation may only be made after court approval, but court approval is not required before a service is provided or an expense is incurred.
If the court dismisses a petition and finds bad faith, the court may assess “any costs the court deems appropriate.”
Compensation of guardian or conservator(119):
Court may award guardian or conservator reimbursement of expenses and compensation for services. The statute spells out the factors the court must consider.
If the guardian or conservator has to defend a ward’s action to modify or terminate the guardianship or conservatorship, or to remove the guardian or conservator, the court may “order compensation” to the guardian or conservator “only to the extent the court determines the opposition was reasonably necessary to protect the interest of the ward.”
Liability (120):
A guardian or a conservator is not personally liable for actions of the ward.
Instruction or ratification (121):
A guardian or conservator may petition the court for instructions or ratification. Notice must be given and a hearing must be held.
Third-party acceptance of authority (122):
Under certain specified circumstances a third party may refuse to recognize authority of the guardian or conservator.
Temporary Substitute guardian or conservator (123):
Court may appoint and remove at any time. While the appointment is in effect, the powers of the existing guardian or conservator are suspended.
Registration of foreign judgment (124):
After registration of the foreign judgment of appointment, the foreign guardian or conservator may exercise all powers of the foreign law except as prohibited by the GAP Act and other Miss. law.
