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.

GAP Act is Coming

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.

Difficulties in Talking About Incompetence and Incapacity, Part IV

August 28, 2014 § Leave a comment

[This is Part IV of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]

Wills and Powers of Attorney

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have…

Miss. Code. Ann. § 91-5-1. The Mississippi courts have explained what “sound and disposing mind” means here:

For testamentary capacity to be present, the testator must be of “sound and disposing mind” at the time of the will’s execution. Miss.Code Ann. § 91–5–1 (Rev.2004); In re Estate of Edwards v. Edwards, 520 So.2d 1370, 1372 (Miss.1988); Weems, at § 4:3. The requirement of a sound and disposing mind does not mean the testator’s mind must be as good as it ever was. Weems, at § 4:3. Rather, the relevant test centers on the time the will is executed. At that time, the testator must: “understand and appreciate the nature and effect of his act [of making a will,] the natural objects or persons to receive his bounty and their relation to him, and [be] able to determine what disposition he desires to make of his property.” In re Estate of Mask v. Elrod, 703 So.2d 852, 856 (¶ 17) (Miss. 1997).

Noblin v. Burgess, 54 So. 3d 282, 291 (Miss. Ct. App. 2010).

Rather than focusing on the statutory language—”sound and disposing mind”—the courts focus on the test quoted from Estate of Mask and repeated in many other cases. Did the testator “understand and appreciate the nature and effect of his act?” That is, did the testator know he or she was making a will? Did the testator know the “natural objects or persons to receive this bounty and their relationship to him?” That is, did the testator know who his heirs would naturally be, and was making an intentional decision about disposition? Finally, was the testator “able to determine what disposition he desires to make…” That is, were the terms of the will established by the testator’s decision of what disposition to make.

The courts have moved away from a possible vagueness trap—what is “of sound mind?”— to more particular language that focuses on the testator’s understanding of what it means to make a will.

Another factor in the test is one of timing: The test for whether a person had capacity to make a will looks to capacity at the specific time the will was signed and witnessed. [Fn 5] This has led the Mississippi Supreme Court to reject medical testimony that a long-term patient lacked capacity due to age and illness and that it was “possible but improbable” that the patient had a lucid interval, in favor of testimony from the testator’s lawyer that the patient knew the extent of his property and established the provisions for the will, and where the testator told the witnesses that it was his will and he wanted them to witness it. Hayward v. Hawyard, 299 So.2d 207, 209 (Miss. 1974). Even findings that a testator had been diagnosed with paranoid schizophrenia or where a conservatorship had been granted for mental instability, that testator can still be competent to make a will. Estate of McCorkle v. Beeson, 27 So.2d 1180, 1187-1188 (Miss. Ct. App. 2009). The Mississippi Supreme Court has held:

The general law (recognized by the chancellor) is that an insane person may execute a valid will ‘in a lucid interval.’ Gholson v. Peters, 180 Miss. 256, 176 So. 605 (1937). Although the conservator in this case had legal control of the property and estate of the testator, this did not affect the testamentary capacity of the one whose property was under the conservatorship. The key to testamentary capacity is mental competency at the time the will is made. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625 (1920). Regardless of the existence of the conservatorship, one whose property is under conservatorship may execute a valid will during lucidity, if possessed of the requisite understanding and mental capacity.

Lee v. Lee, 337 So.2d 713, 714-15 (Miss. 1976).

[Fn 5] If there is a codicil to the will, the test of competency looks to the time of the codicil because the codicil republishes the will.

A final question of competency or capacity is the competency to make a power of attorney. Mississippi’s Uniform Durable Power of Attorney Act provides no guidance except that it provides that, where the principal (the maker of a power of attorney) lapses into incapacity, the powers granted continue, “as if the principal were competent and not disabled.” Miss. Code Ann. § 87-3-307. This creates the problem of a holder of a power of attorney who ignores his fiduciary duties and abuses the power with a client who is incapacitated and therefore no longer has the capacity to cancel the grant of the power. [Fn 6]  At that point, the only real solution would be the appointment of a conservator, an appointment that many use a power of attorney to avoid.

The Court of Appeals has attempted to bridge this gap in statutory definition for competency to make a power of attorney by looking to the test for making a will. Dowdy v. Smith, 818 So.2d 1255, 1258-59 (Miss. Ct. App. 2002). While not justified by statute, this is understandable because it involves adoption of the clearest of the tests discussed in this article, and because it looks to the capacity of a maker of an instrument at the moment the instrument is made:

We find that a fair analogy is the standard for determining whether a testator has the capacity to execute a will. Both a general power of attorney and a last will and testament require an appreciation of the nature and extent of a grantor’s estate and the effects of a potential distribution.

At least until the Supreme Court opines otherwise, this is the best indication we have of the capacity the maker of a power of attorney must hold.

[Fn 6] The prospect of a holder of a power of attorney whose principal was incapacitated is one of many possible abuses. The author is aware of deeds in the land records of Lafayette County made by a holder of a power of attorney after the death of the principal, in violation of Miss. Code Ann. § 87-3-111 (cancelling powers of attorney on death). The deeds were also, on their face, self-dealing.

Conclusion

Clear or definitive answers are not available even when focusing just on the legal profession in an attempt to pin down or establish a clear meaning for the terms “incompetence” or “incapacity.” The courts and legislature have not agreed on precise or consistent meanings. There is statutory overlap in areas that seem distinct—a guardian looks over the person of the ward, while a conservator looks over the estate unless the court decides otherwise. These tensions are exacerbated when an attempt is made to look beyond the courts and law and ask what meaning these terms may have to other professions.

[Thanks to Mr. Freeland for allowing me to share this informative paper with blog readers.]

Difficulties in Talking About Incompetence and Incapacity, Part III

August 27, 2014 § Leave a comment

[This is Part III of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]

Conservatorships

The standard for appointing a conservator is stated in Miss. Code. Ann. § 93-13-251:

If a person is incapable of managing his own estate by reason of advanced age, physical incapacity or mental weakness… the chancery court of the county wherein the person resides… upon the petition of the person or of one or more of his friends or relatives, may appoint a conservator to have charge and management of the property of the person and, if the court deems it advisable, also to have charge and custody of the person subject to the direction of the appointing court.

Several provisions are notable here: First, the test is “incapable of managing his own estate,” and, if that test is met, the chancellor can appoint a conservator who shall have charge of “the property of the person” and, if the chancellor deems advisable, have “charge and custody of the person,” subject to court direction. The subject of a conservatorship has the same limitation on their ability to make a contract as a minor. Miss. Code. Ann. § 93-13-261.

The statute for conservatorships was adopted because of a need for protective services for adults who were not incapacitated as defined in the guardianship statutes. The leading case on the conservatorship statutes, Harvey v. Meador, 459 So.2d 288, 291-292 (Miss. 1984), described this history:

In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships. But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.

Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reason of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates. Miss.Code Ann. § 93-13-251, et seq. (1972).

Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis. This additional procedure was intended to encompass a broader class of people than just the incompetent.

The Court began with a comparison of conditions that would or would not support the appointment of a conservator:

[M]ere advanced age alone is insufficient. Advanced age will naturally bring about decrease in physical prowess and mental efficiency. However, advanced age which renders an inability to manage property or which advanced age exhibits a serious degree of deterioration is contemplated by the statute.

The fact that physical incapacity exists is not in and of itself sufficient justification for the court taking jurisdiction of property involuntarily. A blind or deaf person may be capable of understanding matters of business and receiving communication on the subject. However, almost complete physical paralysis resulting from a cerebral hemorrhage rendering one incapable of managing the estate would qualify under the statute as physical incapacity. Loss v. Loss, 25 Ill.2d 515, 185 N.E.2d 228 (1962).

Mental weakness, as opposed to the more strict application of mental incompetency, is another statutory standard which also employs some vagueness. Mere lack of good business judgment, not amounting to some degree of wasted or dissipated property, is not a sufficient standard. Mental weakness which renders the subject incapable of understanding and acting within discretion in the ordinary affairs of life is sufficient. See Annot., 9 A.L.R.3d 796 (1966) (and cases cited therein).

Harvey, 459 So.2d at 292. From these considerations, the Court went on to adopt what it called “a management competency test as the standard to be applied under the conservatorship statute.” Id. The Court set forth factors to be examined in following the management competency test.

A test of management competency can be answered by considering the factors of: ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or other similar factors.

Id. The Court of Appeals has suggested that any one of these factors is sufficient to allow appointment of a conservator. In re Conservator for Demoville, 856 So.2d 607, 609-610 (Miss. Ct. App. 2003). The Court of Appeals case In re Conservatorship of Hester, 989 So.2d 986, 989-90 (Miss. Ct. App. 2008) provides facts with a good example of the sort of proof that establishes the need for a conservatorship:

[A]t the time of trial, Emma was a seventy-six-year-old woman of below average intellect who had never concerned herself with thehandling of her own business affairs. Instead, she deferred to others to handle these matters in her stead, i.e., her husband, Elden, until his death, then [her live-in son,] Glen. Emma’s own testimony vividly illustrates her inability and/or refusal to deal with the management of her estate. She possesses little meaningful knowledge regarding the amount or whereabouts of her finances, and she has exhibited overall indifference to her business affairs and her living conditions alike. Emma has clearly misplaced her reliance on Glen who has dissipated her funds at will, using them as his own. Emma’s indifference to and/or ratification of Glen’s overreaching demonstrates the level of ease with which Emma may be taken advantage of. Although there was evidence that Emma was capable of performing basic tasks of self-preservation, the evidence supports the conclusion that Emma was incapable of managing her own affairs by reason of advanced age and mental weakness. The record also makes clear that one more responsible than Glen was needed to exercise care and custody over Emma’s estate and person.

Difficulties in Talking About Incompetence and Incapacity, Part II

August 26, 2014 § Leave a comment

[This is Part II of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]

New Statute Relating to Guardianships and Conservatorships

In the most recent term, the legislature passed Senate Bill 2240, [Fn 1] which made substantial additions and some changes to the statutes governing conservatorships and guardianships. Most of the new provisions related to multi-state issues and jurisdiction. There is a provision defining conservator:

[Fn 1] The full statute may be found at: http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2200-2299/SB2240SG.pdf

“Conservator” means a person appointed by the court to administer the property of an adult, including a person appointed under Section 93-13-251 et seq.

The cited code sections are those for conservatorships; it is not clear why the word “including” is used. There is a provision defining guardian:

“Guardian” means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under Section 931-13-111 and Sections 931-13-121 through 93-13-135.

The cited sections are the guardianship statutes.

These provisions have been described as clarifying the distinction between a conservatorship and guardianship. [Fn 2] In one aspect, it is confusing. Under prior law, the conservatorship statute provided for a conservator “to have charge and management of the property” of the subject, or, if the court saw fit, the person of the adult. Miss. Code. Ann. § 93-13-251. This provision is explicitly carried forward by Senate Bill 2240. It is not entirely clear how these different definitions (“managing” property and “having charge and custody of the person” versus “mak[ing] decisions regarding the person of an adult…”) will work in practice, if they are different at all. Further evidence that they may not be different is found in another statutory provision, Miss. Code Ann. § 93-13-261, which defines the powers of a conservator as the same as those of the guardian of a minor.

[Fn 2] Judge Primeaux on his blog, which is one of the best legal resources on the internet for Mississippi lawyers, particularly those in chancery court, described the definitions as clarifying. https://chancery12.wordpress.com/2014/07/10/new-procedures-in-adult-guardianships-and-conservatorships/

The statute also defines an “Incapacitated person” as “an adult for whom a guardian has been appointed….” This highlights a distinction between conservatorships and guardianships that will be discussed, below, in the section on conservatorships: An adult under a guardianship is said to be “incapacitated,” while the subject of a conservatorship is “incompetent.”

Guardianships

Incapacity requiring a guardianship for an adult comes the closest to having a statutory definition. In a chapter titled, “Persons in Need of Mental Treatment,” Miss. Code Ann. §93-13-111 provides:

The chancellor may appoint guardians of the person and estate, or either, of persons found to be in need of mental treatment as defined in Section 41-21-61 et seq. and incapable of taking care of his person and property, upon the motion of the chancellor or clerk of the chancery court, or upon the application of relatives or friends of such persons or upon the application of any other interested party.

This seems to require both a showing of “need of mental treatment” and that the person is “incapable of taking care of his person and property.” The statute then restates the requirement but seems to say that either showing would suffice:

If the chancellor should find from the evidence that such person is in need of mental treatment and incapable of taking care of his estate and person, or either, the chancellor shall appoint a guardian of such person’s estate and person, or either, as the case may be.

The language stating it can be “either” here in the statement of the required proof and, later, in  the description of the contents of a petition suggests that either would suffice. The statutory provision referred to by the guardianship statute does not define persons in need of mental treatment. Instead it defines a “Mentally ill person” and a “Mentally retarded person.” Miss. Code. Ann. § 41-21-61 (e) and (f). It is important to note that chapter 41-21 is the part of the code that provides for a commitment proceeding; essentially for a chancellor to find a person is in need of mental treatment, the chancellor must find that the person is subject to being committed. [Fn 3] The statutory definition may be as important for what it excludes at the end as it is for what it includes at the beginning. It provides:

(e) “Person with mental illness” means any person who has a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which (i) is manifested by instances of grossly disturbed behavior or faulty perceptions; and (ii) poses a substantial likelihood of physical harm to himself or others as demonstrated by (A) a recent attempt or threat to physically harm himself or others, or (B) a failure to provide necessary food, clothing, shelter or medical care for himself, as a result of the impairment. “Person with mental illness” includes a person who, based on treatment history and other applicable psychiatric indicia, is in need of treatment in order to prevent further disability or deterioration which would predictably result in dangerousness to himself or others when his current mental illness limits or negates his ability to make an informed decision to seek or comply with recommended treatment. “Person with mental illness” does not include a person having only one or more of the following conditions: (1) epilepsy, (2) an intellectual disability, (3) brief periods of intoxication caused by alcohol or drugs, (4) dependence upon or addiction to any alcohol or drugs, or (5) senile dementia.

[Fn 3] Beyond the definition of a mentally ill person, the procedures in the guardianship statutes are different than the procedures in the commitment proceeding statutes. Commitment proceeding statutes provide that a relative “may make affidavit” that includes facts relating to why the commitment is needed. Miss. Code. Ann. § 41-21-65. They provide that, after the hearing, the chancellor “shall forthwith appoint” either two physicians or a physician and a psychologist to conduct a physical and mental examination of the person. Miss. Code. Ann. § 41-21-67. There are no parallel provisions in the guardianship statute.

If by “person in need of mental treatment,” Miss. Code Ann. §93-13-111 means “person with mental illness,” then persons with an intellectual disability or senile dementia could not be placed in guardianships under that part of the test. They are specifically excluded. [Fn 4] The statute goes on with another definition:

(f) “Person with an intellectual disability” means any person (i) who has been diagnosed as having substantial limitations in present functioning, manifested before age eighteen (18), characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two (2) or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, and (ii) whose recent conduct is a result of having an intellectual disability and poses a substantial likelihood of physical harm to himself or others in that there has been (A) a recent attempt or threat to physically harm himself or others, or (B) a failure and inability to provide necessary food, clothing, shelter, safety, or medical care for himself.

[Fn 4] That infirmities of aging do not support appointment of a guardian is confirmed by Miss. Code. Ann. § 93-13-121, which covers appointment of a guardianship for an adult who had been appointed an out-of-state guardian. It requires that the court find that the ward is now a resident of this state and is incompetent to manage his estate, but that “infirmities of old age shall not be considered elements of infirmities.”

Miss. Code Ann. § 41-21-61 (f). The language about the incompetencies required to appoint a guardian in this paragraph—”failure to provide necessary food, clothing, shelter, safety, or medical care for himself”—would seem almost identical to the second requirement of Miss. Code. Ann. § 93-13-11— “incapable of taking care of his estate and person.”

The code provides that a guardianship proceeding can be begun by the chancellor’s own motion, a motion from the chancery clerk, or a motion by “relatives or friends of such persons” or “the application of any other interested party.” Miss. Code. Ann. § 93-13-111. The petition is required to be sworn. It must be: “a sworn petition in the chancery court of the county of the residence of such person, setting forth that such person is in need of mental treatment and incapable of taking care of his person and estate, or either.” A guardianship proceeding begins quickly—once a petition is filed, a hearing can be had on five days notice to the potential ward. Id.

The Fog of Contempt

January 15, 2014 § Leave a comment

In the press of courtroom battle, it sometimes happens that things get obscured, as in war, by the fog of all that is transpiring, so that it becomes difficult to appreciate things in their proper capacity.

I touched on this concept recently in a post dealing with contempt in its various, somwhat fluid incarnations.

On January 7, 2013, a panel of the COA had occasion to address the fog of contempt in the case of Zebert v. Guardianship of Baker.

Mr. Zebert, a lawyer, was appointed in 2000 to serve as guardian of the person and estate of a minor. Accountings were filed in each year from 2000 through 2007, but no accounting was filed in 2008 for the period from October, 2007, through September 30, 2008. The court issued a show-cause order and subsequently granted several continuances until Zebert himself asked to be relieved as guardian a year after the accounting had been due. The substitution, however, did not relieve Zebert of the duty to account for his period of responsibility.

Zebert filed an incomplete accounting, and the court held three more show-cause hearings, culminating in an adjudication of contempt and order for Zebert’s incarceration that the court suspended to allow the attorney time to get the accountings together. Zebert then filed a partial accounting disclosing at long last that he had made unapproved disbursements from the guardianship account, including unsecured loans to third parties, totalling more than $130,000, and reducing the assets of the estate to around $6,500.

The chancellor found Zebert in contempt and ordered him to be jailed until he purges himself of contempt. The adjudication was one of civil contempt.

Zebert appealed, complaining that his incarceration was criminal in nature, not civil, and that it was error for the court not to charge him formally, issue a summons, and have the matter heard by another judge.

The COA’s decision is of interest for the contrasting views between the majority, which held that Zebert’s contempt was civil because he was being required to provide a proper accounting, and which affirmed the chancellor, and the dissent by Judge Griffis, which agreed with Zebert that he is being punished criminally, and not being subjected to the coercive power of the court. I commend it to your reading because it illustrates how the same set of contempt facts can be seen by different people in a different light. The fog of contempt, if you will.

Another reason to read this decision is that it once again underscores why chancellors are getting increasingly intolerant of delinquent accountings, excuses, clueless lawyers, and malfunctioning and misfunctioning fiduciaries.

It will be interesting to see what becomes of this case on a request for rehearing or cert.

An Attorney Gets What He Deserves

September 12, 2013 § 3 Comments

I posted here before about the reprehensible conduct of attorney — that’s former attorney — Michael J. Brown, who was jailed for embezzling money — a lot of money — from a guardianship account. Now Brown has been sentenced to prison for his misdeeds. Here’s how the Clarion-Ledger reported it:

A former Flowood attorney has been sentenced to 40 years in prison for embezzling more than $1.2 million from the guardianship account of the grandson of the late civil rights leader Aaron Henry.

Michael J. Brown, 56, was convicted of two counts of embezzlement in Rankin County Circuit Court. He was sentenced to 40 years in prison, with 10 of those years suspended.

A Rankin County grand jury indicted Brown after Hinds County Chancery Judge Dewayne Thomas asked the district attorney’s office to look into the case. Last year, Thomas ordered Brown jailed for contempt for allegedly mishandling the $3 million inheritance of De Mon McClinton.

McClinton couldn’t be reached for comment Thursday.

Thomas said Brown used McClinton’s inheritance money as his own. “He misappropriated $1.2 million, and it looks like he embezzled at least $240,000,” Thomas said.

Thomas ordered Brown to repay the $1.2 million and to repay $398,000 in attorney fees he received from the account.

“There is no greater trust than that between a lawyer and his client,” said Michael Guest, district attorney for Madison and Rankin counties. “Brown was an officer of the court, whose sole purpose was to protect the interest of the minor child.”

Brown, who practiced law since 1994, has been disbarred. He testified he cashed some of the checks, but said the money was given to McClinton’s guardian or to benefit the then-minor. But Brown admitted he had no court order to take money out of the account. No money was supposed to be taken from the account other than $3,000 a month for the guardianship of McClinton at the time.

The McClinton case began on June 16, 2000, when a petition was filed in Chancery Court for Thomas McClinton Jr. of Jackson to become guardian of his son, then-16-year-old De Mon McClinton. De Mon McClinton had lived with his mother, Rebecca Henry, who was Aaron Henry’s daughter, in Clarksdale until her death. Once she died, more than $6 million was split between her two sons.

The guardianship case was closed in 2005, but in 2009 De Mon McClinton, then an adult, asked that the case be reopened.

No further comment necessary other than to point out as I have before that it is cases like this that have chancellors across the state being quite vigilant over accountings,

GUARDIAN OR CONSERVATOR?

May 12, 2011 § 15 Comments

What is the difference between an adult guardianship and a conservatorship?  The difference can significantly impact the course that the case takes, as illustrated by the decision in In the Matter of the Guardianship of Frank Lewis, a COA case decided October 5, 2010, that is the subject of this previous post.

I ran across this language from the case of Harvey v. Meador, 459 So.2d 288, 291-92 (Miss. 1984), that provides a general background:

“Initially, it is appropriate to distinguish guardianships from conservatorships.  Guardians may be appointed for minors; incompetent adults; a person of unsound mind; alcoholics or drug addicts; convicts in the penitentiary; persons in the armed forces or merchant swamen reprted as missing; or for veterans; or minor wards of a veteran.

“The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction.  A ward under guardianship is under a legal disability or is adjudged incompetent.

“In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships.  But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.

“Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reasons of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates.

“Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis.  This additional procedure was intended to encompass a broader class of people than just the incompetent.

“Therefore, the distinguishing feature of conservatorship from guardianship lies in part in the lack of necessity of an incompetency determination or the existence of a legal disability for its initiation.  After establishment of such protective procedures, the duties, responsibilities and powers of a guardian or conservator are the same.  However, the status of the ward in each arrangement is different.”

How the status of the ward is different under each arrangement is a matter for another post.

OUTLINE FOR MINOR’S SETTLEMENTS

July 16, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Petition

  • Are all necessary parties properly joined?
  • Ward – petitions through guardian or next friend.
  • Both parents, if living, are essential parties unless the child is placed under legal guardianship of one parent (e.g., by divorce) or of a third party. 
  • If neither parent is living and no legal guardianship has been established, a guardianship should be established before going forward with the settlement.
  • Is there any need to join ancillary 3rd parties such as DHS or Worker’s Compensation Commission?  § 93-13-59, MCA;  Mississippi Bar v. Moyo, 525 So.2d 1289 (Miss. 1988). 
  • A guardianship is not required for settlements of money or property valued at $25,000 or less, and the $25,000 amount refers to the gross amount and not the amount due the ward after payment of legal fees and expenses.  The court may, in its discretion, require a guardianship in any case, and in this court’s opinion, a guardianship should be required if the gross settlement settlement amount is $10,000 or more.  § 93-13-211, MCA.

Hearing

  • The court must conduct a hearing regarding settlement of the ward’s claim, and a witness on the ward’s behalf must be heard.  Union Chevrolet Co. v. Arrington, 138 So.2d 593 (Miss. 1932).
  • The hearing must be had on the record.

Approval or Disapproval of Settlement

  • The court considers the evidence presented to determine whether the settlement is in the best interest of the child.
  • The court may apply terms and conditions for holding the minor’s property during the period of guardianship.

Accounting

  • When a guardianship is established, annual accounts of receipts and expenditures are required unless excused by the court.
  • A final accounting is necessary at the cessation of the guardianship.  § 93-13-67 through -77, MCA. 
  • § 93-13-38, MCA, states 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, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”

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