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.
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.
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.
Guardian or conservator may resign only after filing a petition and order accepting.
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.
- “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.
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.
August 26, 2019 § 1 Comment
On January 1, 2020, every one of the now-existing guardianship and conservatorship statutes will be repealed. That means that the entire Title 93, Chapter 13, will no longer exist in its present form.
Replacing the present statutes will be the Mississippi Guardianship and Conservatorship Act (commonly known as the “Guard and Protect” (GAP) Act”). It was Senate Bill 2828 in the 2019 Mississippi legislature. You can access a copy of the 144-page bill at this link. All guardianships and conservatorships opened on or after January 1, 2020, will be under the new law.
Beginning next month I will do a series of posts summarizing the act for you.
In the meantime, I urge you to read the entire bill. Better yet, print out a copy and make notes or highlight.
It’s an understatement to say that this new legislation changes the way we do business in guardianships and conservatorships. Your existing forms, pleadings, and practice will no longer work under the GAP Act.
Lawyers who prepare in advance will be successful. Those who do not will likely keep returning to the drawing board (at their own expense) until they get it right. A good way to help get prepared is to attend a GAP Act CLE program in your area. I know of several being planned around the state. Keep your eyes open for notices of programs.