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 § Leave a 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.

GAP Act: General Provisions, Part I

October 2, 2019 § 1 Comment

Continuing with Intro to the GAP Act.

Section numbers correspond to SB 2828.

Subject matter jurisdiction (104):

Chancery Court has jurisdiction to: (1) determine need for a guardianship or conservatorship; (2) determine how to manage, expend, or distribute property of the ward and ward’s dependents; (3) handle all matters of guardianship or conservatorship administration.

Chancery has non-exclusive jurisdiction to determine claims against the ward or ward’s property, and questions of title.

Transfer (105):

Court may transfer to another county if that is in the ward’s best interest:

May transfer to another county or state if in the best interest of the ward. First a final conservatorship accounting is made, then the guardian or conservator qualifies in the new county, and then the case is closed in the original county.

If a proceeding to establish a guardianship or conservatorship is filed in another state while a complaint is pending in Mississippi, the court confers with the judge in the other state and decides whether to assume or decline jurisdiction, based on the best interest of the respondent.

Venue for guardianship (106):

For a minor: in the county where the minor resides or is “present at the time the proceeding commences.” Or, the county where a proceeding for custody or parental rights is pending.

For an adult: in the county where the adult resides or is institutionalized by court order; for an adult emergency order, the county where the respondent is present.

Venue for conservatorship (106):

In the county where the respondent resides, regardless whether a guardian has been appointed in another county, or, if the respondent does not live in Mississippi, then the county where the property of the respondent is located.

If actions are filed in more than one county, the first-filed has exclusive right to proceed unless the judge finds that venue is properly in another court or that justice requires transfer.

Practice (107):

Proceedings are per MRE and MRCP. No mention of UCCR.

Guardianship and conservatorship actions for the same individual may be consolidated.

Letters of guardianship and conservatorship (108):

Clerk must issue upon taking of oath, posting of any required bond, and submission of fiduciary’s certificate and attorney’s certificate. Bond may be waived, and the court can impose an alternative asset-protection arrangement.

Court may limit powers of the fiduciary initially or at any time. Limitations must be spelled out in the Letters. The clerk will issue new Letters if powers are later curtailed or expanded.

Limitations on powers must be spelled out in the Letters.

Submission to jurisdiction (109):

By accepting appointment the fiduciary submits to the jurisdiction of the court for proceedings related to the guardianship or conservatorship.

Co-Guardians and Co-Conservators (110):

“When the Court deems appropriate,” co-fiduciaries must comply with Section 108.

Successor fiduciaries (111):

The court may appoint a successor guardian or conservator at any time to serve immediately as ordered.

Any person entitled to petition for appointment of a guardian or conservator under Sections 202 or 302 may petition the court for appointment of a successor guardian or conservator.

A successor must comply with Section 108.

Resignation (112)

Guardian or conservator may resign only after filing a petition and order accepting.

GAP Act: Section 125

September 10, 2019 § 1 Comment

A good starting point in looking at the GAP Act is with the most frequently asked questions that I have heard about the new law. Those questions are: How does the GAP Act affect guardianships and conservatorships that were opened before January 1, 2020?; and Can I opt out of GAP Act coverage?

Those questions are answered in Section 125 of the GAP Act, which is entitled “Transition Provisions.”

Here is Section 125 verbatim:

Section 125. Transition provisions. Except as otherwise provided in this chapter:

(a) This chapter applies to all guardianship and conservatorship proceedings commenced on or after January 1, 2020;

(b) This chapter applies to all guardianship and conservatorship proceedings commenced before January 1, 2020, unless the court finds that 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, in which case the particular provision of this chapter does not apply and the superseded law applies; and

(c) An act done before January 1, 2020, is not affected by this act.

Comments:

  • “Proceedings commenced” means that if you file an action to create a guardianship or conservatorship on or after January 1, 2020, your action is governed by the GAP Act. That’s because MRCP 3(a) provides that “A civil action is commenced by filing a complaint with the court.” There is no exception or “opting out” for an action commenced on or after January 1, 2020.
  • But, if you file to create a guardianship or conservatorship under current law before January 1, 2020, and the case is not presented until after January 1, 2020, there is a way that you could choose which law will apply. If you do not take other steps, your case will be under the GAP Act, and you will likely have to re-issue process and amend pleadings to comply with GAP. Or you can get the judge to enter an order exempting your case, as spelled out below.
  • If you have an existing guardianship or conservatorship, or you are in the situation in the previous paragraph, and you want to continue under the superseded law, I would suggest that you file a motion claiming that the application of Section 125 “would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties,” and obtain a court order that the case will proceed under the superseded statutes until further order of the court. In the alternative you can ask the judge to rule that application of a particular provision, such as the enhanced notice requirements, or some other particular provision will make it harder to administer and cause more expense. The ruling on that motion will be at the chancellor’s discretion, which varies from judge to judge. Don’t assume it would be automatic.
  • DON’T Discard your current Title 93, volume 20 of the Code! You may need those provisions after the GAP Act comes online. If you’re operating from an online code, you might want to print out a copy of the current Title 93, Chapter 13 just to be sure you have something to go back to.

The GAP Act: Introduction

September 4, 2019 § 1 Comment

Effective January 1, 2020, every statute now existing in Title 93, Chapter 13 will be repealed and replaced by SB 2828, known as the GAP Act. GAP is an acronym for “guard and protect” children and vulnerable adults.

The act is a product of a commission initiated in 2017 and headed by Justice Dawn Beam of the MSSC. The commission produced the content that was introduced in the legislature as SB 2828 in 2018, and was signed into law by Governor Bryant in 2019. The effective date was set far enough in the future to give lawyers and judges time to acquaint themselves with the new law.

All guardianships and conservatorships opened after January 1, 2010, must comply with the act. There are four Articles of the act: Article 1 consists of general provisions; Article 2 deals with guardianship of the minor; Article 3 addresses guardianship of the adult; and Article 4 is for conservatorships.

As for pre-Act guardianships and conservatorships, Section 125 provides that GAP applies to them also unless the chancellor finds that application of a particular provision would “substantially interfere” with the guardianship or prejudice the rights of the parties, in which case that provision does not apply and the superseded law applies. So don’t toss out your Title 93 when the new code arrives.

One of the biggest changes is that the term ”Guardian” will mean the person responsible for the personal affairs of the ward – what we now call a “guardian of the person.  A guardian may have a minor or adult ward. “Conservator” will mean the person responsible for the financial affairs of the ward. A conservator may have a minor or adult ward.

Another big change is heightened notice requirements. More people will have to be given notice of the proceeding, and some of those may be allowed to participate. Notices will have to include certain language, as will pleadings.

Hearings are mandated. The court is required to make specific findings.

The MSSC will publish forms for pleadings, process, and even court orders. The forms you have now will not work under the GAP Act.

I will publish a series of posts giving you some insight into what is coming. In the meanwhile, I urge you to read the act and become conversant with it. This blog is no substitute for your own mastery of the subject, which will require that you read and digest its content.

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