Looking Ahead to 2020
December 30, 2019 § Leave a comment
If hindsight is, indeed 2020, then it follows that 2020 should be the year of hindsight, right?
But we do have some things to look forward to in 2020. So using foresight, here are some:
- A slew of amended MRCP. The Supreme Court Civil Rules Advisory Committee has been busy over the past two years studying and revising the MRCP and Advisory Committee Notes to make them more functional, to address problems that have surfaced since the rules were adopted in 1982, and to clear up inconsistencies. The committee has sent a number of proposed amended rules up to the MSSC, and already the court has published an amended Rule 26. Look for plenty more in 2020. In fact, go to courts.ms.gov and click on Research/Rules/ Rules for Comment and you’ll see many there now for your study and comment. I encourage you to add your thoughtful comments. The end result of the changes will be more clarity and functionality.
- New chancery court rules (UCCR). In October, the Conference of Chancery Judges unanimously approved new, revised UCCR and filed a motion with the MSSC to adopt them. If the court does adopt them, the several of you who do read and try to follow them will find them more accessible, clearer, updated, and consistent in form.
- The GAP Act. It will be a new era for guardianships and conservatorships. Gone will be the confusing and sometimes contradictory web of statutes, replaced by a more streamlined system with clearer nomenclature and procedures. Yes, there will be a learning curve, and, yes, there are some tweaks that must be done in the upcoming legislative session to address some questions, but overall it will be an improvement.
- Bell on Mississippi Family Law. Professor Bell is working on the third edition of her treatise, and it should be out in the new year.
- New law every Tuesday and Thursday. For those of you who have bemoaned developments like those mentioned above, don’t forget that the law is ever-changing and evolving. Always has been and always will. If you question that, just read the hand-downs from the COA and MSSC every Tuesday and Thursday. There you will find weekly revelations, some of which challenge or even wipe out your long-held legal assumptions.
Best Practices in Guardianships and Conservatorships
December 11, 2019 § 2 Comments
The UCCRs impose a heavy duty on attorneys to advise and supervise the client-fiduciary in fiduciary matters, including guardianships and conservatorships. The burden can be so onerous that some cases refer to it as the “yoke of probate.” You can not blithely turn your fiduciary loose to figure it out for himself or herself. You have a duty to the court, the ward, creditors, and, in estates, the beneficiaries or heirs.
Make sure your fiduciary knows what are the do’s and don’ts. Put together an instruction sheet and have your client sign a copy to keep in your file for your protection.
There is a reason that UCCR 6.01 requires every fiduciary to have an attorney (unless excused). It’s because the attorney is the arm of the court who is responsible to supervise the fiduciary and make sure everything is being done properly. As you have heard many times before, if you find that too burdensome, simply refuse to handle fiduciary matters.
Some GAP Act considerations:
• § 93-20-125, MCA, deals with coverage of the GAP Act. All cases commenced on or after January 1, 2010, proceed under the GAP Act. “A civil action is commenced by filing a complaint with the court.” MRCP 3(a). So when you file your complaint to open the guardianship or conservatorship will determine coverage. Cases that were commenced before January 1, 2020, are covered by the GAP act unless you move the court for a finding the “application of a particular provision of this chapter would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties …” and the court finds that the particular provision does not apply.
• MRCP 18(a) specifically states that “A party asserting a claim to relief as an original claim, counter-claim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims as he has against an opposing party.” Some people have raised the question whether the GAP Act allows a combined guardianship/conservatorship action. The GAP Act is silent on the point, yes. But MRCP speaks loudly that you can. And the GAP Act expressly provides at Section 107 that procedures are governed by the MRCP.
• Some people have also questioned whether, if combined actions are allowed under the MRCP, are two filing fees required? Why would they be? They are not now for combined guardianships of the person and estate, which are merely the old (now existing) terms for what under the GAP Act will be guardianship and conservatorship.
• There are some hiccups with MEC adapting to the new nomenclature imposed by the GAP Act. That is being fixed even as this is being written. Our fingers are crossed that the issues will be fixed before January 1, 2020.
• Also to be addressed are technical corrections to the Act to address some concerns that have been raised. This is normal and to be expected. Every statute with the extent of the GAP Act undergoes a similar process.
Some general suggestions …
• Always accompany the fiduciary to the bank or other financial institution to open the conservatorship 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 conservatorship 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 parties claiming an interest. The GAP Act inventory form is exactly what you need to go by.
• GAP Act forms are not only helpful; they also were carefully crafted to include every item you are required to plead or report. Use them. Slavishly using the exact forms is not (yet) required; however, if you prefer to make your own forms, yours should substantially conform to those published.
• As of today, we have no body of law interpreting the GAP Act, but that will surely change over time. Until it does, we can look to court decisions under our former law. MCA §93-13-38 provided that, “All the provisions of the law on the subject of executors and administrators , relating to settlement or disposition of property limitations, notice to creditors … “ , etc. also applied to guardianships and conservatorships. Just in case that principle is found to apply to GAP Act cases, you need to keep in mind that, in an estate, when real property is sold pursuant to a decree of the court, § 91-7-205, MCA, requires that the executor or administrator shall execute a bond equal to the proceeds of the sale of the land. This code section does not apply to a sale by the heirs or devisees in whom title has vested. There is an exception to the requirement of bond. If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficiaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond. § 91-7-205, MCA. If an executor or administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land. Section 91-7-207, MCA. An early case held that failure to give the bond voids the sale. Buckner v. Wood, 45 Miss. 57 (1871).
• Your fiduciary is obligated to increase the ward’s estate, if possible. The courts apply the prudent investor standard, which can be second-guessed. There are a few ultra-safe investments that the fiduciary may make without prior approval, per MCA § 91-13-3, including time CD’s, CDAR’s, savings accounts, and most FDIC- and FSLIC-insured accounts (Note: to my knowledge, credit union accounts do not qualify). Only problem is that in this era, those accounts produce interest rates closer to zero than anything that would actually increase the ward’s estate. So the prudent investor has to look to more speculative investments, which are allowed under MCA 91-13-3 and -5, but require a bond. See In re Guardianship of Roshto, 134 So. 3d 739 (Miss. 2014). Under the GAP Act, you will need to submit your investment plan to the court for approval, with adequate supporting documentation so that anyone looking at it later will be able to see that the court had a valid basis for its order.
• All expenses and receipts must be accounted for annually or more frequently if ordered by the court. UCCR 6.03 – 6.06 detail the voucher requirement. There’s a right way and a wrong way to file an accounting; do it the right way. Forms are published to help you. Use them.
• § 93-13-69, MCA formerly required that accounts of several wards must have been kept separately. We still think that the best practice under the GAP Act will be to open a separate guardianship or conservatorship, or guardianship/conservatorship for each of several wards, even if they are guardianships only, because if assets come into the child’s estate, they must be accounted for separately. The former statute did authorize the judgments dealing with them to be combined “wherever practicable.”
Minor’s settlements …
• Yes, there is nothing in the GAP Act that does away with the requirement of minor’s settlements. § 93-20-431 does allow transfers not exceeding $25,000 to a minor in a given year without court approval, which is commensurate with the law pre-January 1, 2020. So when, exactly, is court approval required? In every transaction in which the minor is to receive a liquidated sum over $25,000, and in every case involving an unliquidated sum. A liquidated sum would include, for example, life insurance proceeds or a lump-sum survivor’s benefit for a set amount by contract. If the settlement is for an unliquidated sum, such as for personal injury settlement, the settlement must be found by a chancellor to be in the best interest of the ward; i.e., in a minor’s settlement proceeding. The statute does not specify the liquidated/unliquidated dichotomy spelled out above, but I believe that approach is the best practice and most protective of all parties.• You should always obtain a letter from the Mississippi Division of Medicaid either stating the amount of its lien against the proceeds, or stating that it asserts no lien. Never accept your client’s word that Medicaid has no lien. Failure to protect Medicaid’s lien can subject both you and your client to an action by Medicaid to recover double damages, and your client can lose Medicaid eligibility as well.
• Remember that, in minor’s settlements, only statutory liens are required to be withheld from the minor’s proceeds. Memorial Hospital at Gulfport v. Proulx, 121 So. 3d 222, 224 (Miss. 2013). It is the duty of the parents, not a child, to provide for the child’s medical care; when you ask the court to order that unpaid medical expenses be paid out of the child’s proceeds, you are essentially asking the court to order the child to pay his or her own medical bills. If you do want the child to have to pay for his own medical care, you will have to put on proof that requiring the parents to pay would put an undue financial burden on the family that will impact other children and the parents, and that if the parents are unable to pay and it goes into collection, the ward’s future ability to obtain medical care will be adversely affected. Otherwise, the chancellor will have to assign responsibility for expenses not included in the settlement on the parents.
• Remember, too, that the chancellor is responsible to make sure that the settlement is reasonable. It makes no difference that everyone with responsibility agrees that the settlement is reasonable. It is the chancellor’s duty to make the decision that it is in the child’s best interest.
• My best prognostication is that, although the law will have changed, chancellors will continue to have the same expectations of diligence, responsibility, candor, and honesty in handling of fiduciary matters that they have had under existing law.
Some GAP Act Considerations Early On
December 10, 2019 § Leave a comment
Concerns are being voiced about some provisions of the GAP Act, which will go into effect in a few mere weeks. The Guardianship Commission is going to the legislature to seek some technical amendments to the GAP Act that will address most of those concerns, but until that gets accomplished, here are some ideas to help deal with the rollout:
- § 93-20-125, MCA, deals with coverage of the GAP Act. All cases commenced on or after January 1, 2020, proceed under the GAP Act. So when is a case commenced? MRCP 3(a) specifies that “A civil action is commenced by filing a complaint with the court.” So the date when you file your complaint to open the guardianship or conservatorship will determine coverage. For example, if you filed a petition on November 15, 2019, but don’t obtain a judgment until January 15, 2020, it may or may not be covered by the GAP Act, as explained below. Likewise, if your fiduciary was appointed in 2016, your case may or not be covered by the GAP Act, as explained below. But, if you file your petition on or after January 1, 2020, your case is under the GAP Act, period.
- For those pre-GAP Act cases, there is a possibility that you could continue under the existing law. That’s possible because Section 125 provides that cases commenced before January 1, 2020, are covered by the GAP Act unless you move the court for a finding that the “application of a particular provision of this chapter would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties …” and the court finds that the particular provision does not apply. So, if you don’t want your pre-existing guardianship or conservatorship to be subject to the GAP Act, file a motion and ask the judge to except it.
- Some have questioned whether that motion in the previous paragraph needs to be filed before 1-1-2020. My opinion is that it doesn’t. I think it must be filed before the next event, such as accounting or motion for authority and direction, whenever that comes before the court.
- Many have pointed out the ambiguity in the GAP Act over the “notice” that must be given to various individuals in guardianships and conservatorships. I understand that ambiguity will be addressed in the technical amendments, but that will take until the end of the upcoming session of the legislature. How do we deal with it in the meantime? Here’s how I intend to. Notice to persons who are entitled to due process under the Fifth Amendment will be by service of process; those people are the ones whose liberty is being affected (adult and minor proposed wards in guardianships, and parents in minor guardianships), and whose property rights are being affected (proposed wards in conservatorships, and parents of proposed minor wards in conservatorships). In addition, the statute specifically requires that, in some actions, notice to one additional relative in Mississippi is required; that person should get process. All of these entitled to process are entitled to Rule 81 process. Everyone else gets simple notice, which requires only a mailing and certificate of service. “Notice” short of process is MRCP 5 notice, in my opinion. Your chancellor’s mileage may vary. Communicate with your chancellor and discover how she’s going to address these matters. It can vary from district to district, and even from chancellor to chancellor within a district.
- To implement the previous paragraph, looking at the law, I believe R81 process is required on the following: § 204, the minor, each parent, or, if none to be found, the adult nearest in kin who can be found; § 303, the proposed ward, any already-appointed conservator, and one relative selected in descending order from sub-sections (i) and (ii); § 403, the proposed ward, and one relative selected in descending order from sub-sections (i) and (ii), the VA if it has an interest; and any other person as directed by the court. Anyone else named in the Act as one to receive notice should be noticed per R5, unless the Act specifies summons.
- The GAP Act specifies that the MRCP controls procedures, so tailor your procedures to make them fit the MRCP. It’s not rocket science. You had to do the same thing with the old law, didn’t you? After all, most of the old law pre-existed the MRCP, and we had to engineer ways to tailor it to the new procedures, which we did successfully. We will do the same with this new law.
- MRCP 18(a) specifically states that “A party asserting a claim to relief as an original claim, counter-claim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims as he has against an opposing party.” Some people have raised the question whether the GAP Act allows a combined guardianship/conservatorship action. The GAP Act is silent on the point, yes. But MRCP speaks loudly that you can. And the GAP Act expressly provides at Section 107 that procedures are governed by the MRCP.
- Some people have also questioned whether, if combined actions are allowed under the MRCP, are two filing fees required? Why would they be? They are not now for combined guardianships of the person and estate, which are merely the old (now existing) terms for what under the GAP Act will be guardianship and conservatorship.
- There is nothing in the GAP Act that does away with the requirement of minor’s settlements. § 93-20-431 does allow transfers not exceeding $25,000 to a minor in a given year without court approval, but that is simply our current law recodified in the GAP Act. So when, exactly, is court approval required? I suggest that, court approval must be obtained in every transaction in which the minor is to receive a liquidated sum over $25,000, and in every case involving an unliquidated sum. A liquidated sum would include, for example, life insurance proceeds or a lump-sum survivor’s benefit for a set amount by contract. If the settlement is for an unliquidated sum, such as for personal injury settlement, the settlement must be found by a chancellor to be in the best interest of the ward; i.e., in a minor’s settlement proceeding. The statute does not specify the liquidated/unliquidated dichotomy spelled out above, but I believe that approach is the best practice and most protective of all parties.
- There are some hiccups with MEC adapting to the new nomenclature imposed by the GAP Act. That is being fixed even as this is being written. Our fingers are crossed that the issues will be fixed before January 1, 2020.
- Also to be addressed are other technical corrections to the Act to address some concerns that have been raised. This is normal and to be expected. Every statute with the extent of the GAP Act undergoes a similar process.
- Finally, there’s no reason to panic. The law is ever-changing, and sometimes the changes are big, like when the MRCP and MRE were adopted. The lawyers who adapted and learned to live with the changes survived and thrived, and the dinosaurs became extinct. It will be the same with the GAP Act.
GAP Act: Walk-Through of a Conservatorship
November 20, 2019 § Leave a comment
Continuing with our overview of the GAP Act.
At the GAP ACT MATERIALS tab you will find some helpful material presented by Chancellor Charles Smith at the Meridian GAP Act seminar earlier this month, entitled “Conservatorship — Walk Through.”
GAP Act: Guardianship of an Adult, Part II
November 13, 2019 § Leave a comment
Continuing with an overview of the GAP Act.
Section numbers correspond to SB 2828.
Duties of guardian (312)
Guardian is a fiduciary.
Except as limited by the court, the guardian makes decisions about the support, care, education, health, and welfare of the ward to the extent made necessary by the ward’s limitations.
Guardian promotes self-determination by the ward, encourages participation in decision-making, acts on the ward’s behalf, develops the ward’s capacity to act on the ward’s own behalf.
In carrying out the duties, the guardian may: (1) become personally acquainted with the ward’s limitations and physical and mental health through regular visits and other means; (2) identify the ward’s preferences; (3) identify supportive services and relationships.
Guardian exercises reasonable diligence and prudence in decisions: (1) takes reasonable care of the ward’s personal effects, pets, and service animals; (2) brings conservatorship proceeding if necessary; (3) expends ward’s funds for the ward’s needs; (4) conserves surplus funds for future needs and pays surplus to any conservator; and (5) monitors the services being provided to the ward.
In making a decision for the ward, the guardian makes the decision that the guardian reasonably believes the ward would have made unless it would harm the ward or the ward’s financial interest. The guardian should look to previous statements of preference.
If the ward’s preferences can not be determined, then the guardian makes decisions in the best interest of the ward, considering: (1) information from professionals and other persons in the best interest of the ward; (2) information the G believes the ward would have considered were the ward capable; (3) “Other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.”
The guardian must immediately notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously taken away.
Powers of the guardian (313):
Except as limited by the court, a guardian may: (1) apply for and receive funds for support of the ward; (2) unless inconsistent with the court order, establish a dwelling place; (3) consent to health or other care, treatment or service; (4) if no conservator has been appointed, initiate proceedings to have one appointed, or initiate proceedings to compel a person to support the ward or pay funds for the ward’s benefit; (5) reasonably delegate decision-making to the adult if reasonable; (6) receive the adult’s health-care information.
In exercising power to select a dwelling, the guardian must: (1) select a dwelling the guardian believes the ward would select if able, and in the adult’s best interest; (2) give priority to a setting that will allow the ward to interact with persons important to the ward and in the least restrictive manner feasible; (3) place the ward in a nursing home, mental health facility, or other restrictive setting only if:
(a) the placement is included in the guardian’s plan under Section 315;
(b) the court authorizes the placement;
(c) the guardian gives 14-days’ advance notice to all entitled to notice per Section 309(4), or court order, and no objection is filed;
(d) move the ward out of state only if consistent with the guardian’s plan and authorized by court order;
(e) move the ward resulting in sale of or surrender of lease of primary residence only if:
(i) such action is specifically included in the guardian’s Section 315 plan;
(ii) the court authorizes such action by specific order;
(iii) notice was given 14 days in advance to the adult and all Section 309(4) persons and no objection is filed; and
(iv) notify the court if the ward’s dwelling has been so damaged by fire, flood, etc. so that the ward has to relocate temporarily or permanently.
In exercising health care decisions, the guardian shall: (1) involve the ward in decision-making to extent feasible; (2) defer to decisions by an agent under a health-care directive, and cooperate with the agent; (3) take into account the risks and benefits of treatment options, and the current and previous wishes of the ward, if known.
Special limitations on guardian’s power (314):
Unless authorized by the court, the guardian may not revoke or amend an advanced health-care directive or POA for finances executed by the adult.
Health-care decisions of an agent under a health-care directive take precedence over those of the guardian.
Financial decisions of an agent under a financial POA take precedence over those of the G.
The guardian must cooperate with the duly-appointed agents.
Guardian may not commit the adult to a mental-health facility except in an involuntary civil commitment procedure.
Guardian may not restrict the ward’s communications, visits, or interactions with others unless: (1) specifically authorized by court order; (2) a protective order is in place; or (3) the guardian has good cause to believe restriction is necessary to protect the ward, and can impose restrictions:
(a) for not to exceed 7 business days if the person restricted had prior family or social relationship with the ward; or
(b) for not more than 60 days for all others.
Guardian’s Plan (315):
If required by the court, the guardian shall file a plan for care of the adult not later than 90 days after the appointment or order to file a plan.
If there is a change in circumstances, or if the guardian wishes to deviate from the original plan, the guardian must file a revised plan no later than 90 days after the change or decision to deviate.
Plan must be based on needs of the adult taking into account the adult’s best interest, preferences, values, and prior directives, and must include: (1) the adult’s proposed living arrangements and services; (2) expected social and educational activities; (3) plans for regular visitation and identity of those to visit; (4) nature and frequency of visits and communication; (5) goals for the adult, including restoration of decision-making rights, and how the G intends to accomplish; (6) whether the ward has an existing plan, and if so whether this plan is consistent; and (7) itemization of charges the G anticipates for services to be rendered.
Guardian must give notice and a copy of the plan to the ward, the ward’s spouse, parents, children, and any other person as directed by the court.
Well-being report and monitoring (316):
If any significant change in circumstances or the guardian wishes to deviate from the plan, the guardian must file a report stating: (1) the mental, physical, and social condition of the adult; (2) the living arrangements during the reporting period; (3) summary of services provided and the guardian’s opinion of the adequacy of the ward’s care; (4) summary of the guardian’s visits with the ward including dates; (5) action taken on behalf of the ward; (6) the extent to which the adult has participated in decision-making; (7) if the ward is living in a mental health or health-care facility, the guardian’s opinion as to whether the care is consistent with the adult’s best interest and preferences; (8) any business relationship the guardian has with any person paid by the guardian to provide services; (9) copy of the ’s most recent plan, stating whether the guardian has deviated, and if so how and why; (10) plans for future care and support; (11) recommendation as to whether there is a need for continued guardianship, or whether change in the scope of the guardianship is needed; (12) whether any co-guardian or successor guardian is alive and able to serve; (13) photos of the ward and living conditions, if required by the court; and (14) itemization of amounts requested for reimbursement or legal fees.
The court may appoint a GAL to review a report, or a plan, or to interview the guardian or ward, or to investigate any other matter involving the guardianship.
Notice of filing, with a copy, must be sent not later than 14 days after filing to the adult ward, the spouse, parents, children, and any other person the court determines.
The court is required to establish procedures for monitoring reports and to review each report at least annually to determine whether: (1) the report includes sufficient information to determine whether the guardian has complied with the guardian’s duties; (2) the guardianship should continue; (3) the guardian’s requested fees, if any, should be approved.
If the court determines that there is reason to believe that the guardian has not complied with the guardian’s duties, or that the guardianship should be modified or terminated, the court: (1) shall notify the ward, spouse, parents, children and other persons entitled to notice under Section 309(4) or by court order; (2) may appoint a GAL to investigate; (3) may hold a hearing to consider removal of the guardian, or termination of the guardianship, or change in powers of guardian.
The guardian may petition the court for approval of a report. If the court approves, there is a rebuttable presumption that the report is accurate as to any matter adequately disclosed in it.
Removal of guardian and appointment of successor (317):
“Upon petition and for good cause shown” the court may hold a hearing to consider whether to remove a guardian for failure to perform duties, and the court may appoint a successor.
Notice of a petition must be given to the ward, the guardian, and any other person the court determines.
A ward seeking to remove a guardian has the right to choose an attorney for representation. “The court shall award reasonable attorney’s fees to the attorney as provided in Section 118.”
Not later than 10 days after appointment of a successor guardian, “the court shall give notice” of the appointment to the adult ward, spouse, parents, children, and any other person ordered by the court.
Termination or modification of guardianship (318):
Upon petition and for good cause shown, the court may hold a hearing to consider whether: (1) termination should be ordered because a basis for appointment under Section 301 does not exist; or (2) termination would be in the best interest of the ward; or (3) for other good cause; or (4) modification should be ordered because the extent of protection or assistance ordered is not appropriate, or for other good cause.
Notice of the petition must be given to the ward, the guardian, and any other person the court determines.
“On presentation of prima facie evidence” the court shall order termination unless proven that a basis for appointment exists under Section 301.
The court modifies the powers granted if powers are excessive or inadequate due to changes in the abilities or limitations of the adult, the adult’s supports, or other circumstances.
Unless the court orders otherwise for good cause, the court shall follow the same procedures to safeguard the rights of the adult that apply to a petition for guardianship.
A ward who seeks to terminate may choose an attorney, and the court may award attorney’s fees as provided in Section 118.
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.
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.
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.
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.
GAP Act CLE November 8
October 8, 2019 § Leave a comment
The Twelfth Chancery Court District and Lauderdale County Bar are sponsoring a 6-hour CLE seminar on the GAP Act on November 8, 2019, at the MSU Riley Center in downtown Meridian.
The program schedule:
800 – 900 Registration
900 – 905 Welcome
905 – 1005 Overview of the GAP Act — Attorneys Rick Courtney and Gray Edmondson
1005 – 1105 Forms to Make Your Job Easier — Chancellor Kiley Kirk and Attorney Whitney Thrasher
1105 – 1115 Break
1115 – 1215 Walk Through of a Guardianship — Chancellor Joey Kilgore
1215 – 1115 Special Lunchtime Speaker — Chief Justice Mike Randolph (Lunch Provided)
115 – 215 Walk Through of a Conservatorship — Chancellor Charles Smith
215 – 315 Best Practices in Fiduciary Matters — Chancellors Robert Logan and Larry Primeaux
315 – 330 Break
330 – 430 Ethics Hour — Professor Donald Campbell, MCLaw
Fee is $125 for pre-registration; $150 at the door. Space is limited, so register soon.
You can mail your check payable to Lauderdale County Bar Association, P. O. Box 1252, Meridian, MS, 39302. Please include your Miss. Bar no. on the check.
The Better Chancery Practice Blog 