October 17, 2011 § 3 Comments
Minors can not act for themselves. We call this the “disability of minority,” and the chancery court is charged with protecting their rights. Alack vs. Phelps, 230 So. 2d 789, 793 (Miss. 1970).
The principle of minority disability is in keeping with the ancient maxim of equity that “When parties are disabled equity will act for them.” Griffith, Mississippi Chancery Practice, Section 34, page 37 (1950 ed.). More than 130 years ago, in the case of Price vs. Crone, 1871 WL 8417, at 3 (1870), the Mississippi Supreme Court stated:
“Nothing is taken as confessed or waived by the minor or her guardian. The court must look to the record and all its parts, to see that a case is made which will warrant a decree to bind and conclude [the minor’s] interest, and of its own motion, give the minor the benefit of all objections and exceptions, as fully as if specially made in pleading … There being no power in the infant to waive anything, a valid decree could not be made against her, unless there has been substantial compliance with the requirements of the law, in the essential matters.” [Emphasis added]
Thus, the chancery court can and should act on its own initiative to protect and defend the minor’s interest.
In the case of Khoury vs. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948), the supreme court held that, “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them …” This is so even where the minor has pled, appeared in court, and even testified.” Parker vs. Smith, et al., 150 Miss. 849, 117 So. 249, 250 (Miss. 1928).
Our modern MRCP 4(e) embodies these concepts wherein it specifically states that, “Any party … who is not an unmarried minor … may … waive service of process or enter his or her appearance … in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the ate thereof.” There is no provision in MRCP 4 that permits a minor to join in an action on his or her own initiative, or to waive process; in fact, the express language of Rule 4 makes it clear that such is not permitted.
It is a long-held fundamental of Mississippi law that process must be had on infants in the form and manner require by law, and a decree rendered against minors without service in the form and manner required by law is void as to them, as they can not waive process. Carter vs. Graves, 230 Miss. 463, 470, 93 So.2d 177, 180 (Miss. 1957).
The purpose of the protective posture of the law is clear: “Minors are considered incapable of making such decisions because of their lack of emotional and intellectual maturity.” Dissent of Presiding Justice McRae in J.M.M. vs. New Beginnings of Tupelo, 796 So.2d 975, 984 (Miss. 2001). During the formative adolescent years, minors often lack the experience, perspective and judgment required to recognize and avoid choices that are not in their best interest. Belotti vs. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043 (1979).
In the case of In the Matter of R.B., a Minor, by and through Her Next Friend, V.D. vs. State of Mississippi, 790 So.2d 830 (Miss. 2001), R.B., an unmarried, seventeen-year-old minor, became pregnant and sought chancery court approval of an abortion, pursuant to MCA § 41-41-55(4). The decision described her as, ” … of limited education, having attended school through the eighth grade,” and largely ignorant of the medical and legal implications of her request. Id., at 831. The decision reveals that the chancellor went to great pains to develop the record that the young girl had not been informed of the possible complications of the surgical procedure, that she was emotionally fragile and susceptible to mental harm, that there were services available to the youngster of which she was unaware, and other pertinent factors. Id., at 834. The supreme court upheld the decision of the chancellor, saying,
“R.B. has failed to persuade us that she is mature enough to handle the decision (for an abortion) on her own. The record does not indicate that the minor is capable of reasoned decision-making and that she has considered her various options. Rather the decision shows that R.B.’s decision is the product of impulse.” Id., at 834.
It has long been the law in Mississippi that all who deal with minors deal with them at their peril, since the law will take extraordinary measures to guard them against their own incapacity.
The principle of minority disability is ingrained in many facets of Mississippi law:
- Minors may not vote. Article 12, Section 241, Mississippi Constitution.
- Minors may not waive process. MRCP 4(e).
- Minors may not select their own domicile, but must have that of the parents. Boyle vs. Griffin, , 84 Miss.41, 36 So. 141, 142 (Miss. 1904); In re Guardianship of Watson, , 317 So.2d 30, 32 (Miss. 1975); MississippiBand of Choctaw Indians vs. Holyfield, 490 U.S. 30, 40; 109 S.Ct. 1597, 1603 (1989).
- Minors may not enter into binding contracts regarding personal property or sue or be sued in their own right in regard to contracts into which they have entered. MCA § 93-19-13.
- Minors may not have an interest in an estate without having a guardian appointed for them. MCA § 93-13-13.
- Minors may not purchase or sell real property, or mortgage it, or lease it, or make deeds of trust or contracts with respect to it, or make promissory notes with respect to interests in real property without first having his or her disabilities of minority removed. MCA § 93-19-1.
- Minors may not be bound by contracts for the sale of land, and may void them at their option.Edmunds vs. Mister, 58 Miss. 765 (1881).
- Minors may not choose the parent with whom they shall live in a divorce or modification; although they may state a preference, their choice is not binding on the chancellor. MCA § 93-11-65; Westbrook vs Oglesbee,606 So.2d 1142, 1146 (Miss. 1992); Bell vs. Bell, 572 So.2d 841, 846 (Miss. 1990). Minors may not after emancipation be bound by or enforce contracts entered into during minority except by following certain statutory procedures. MCA § 15-3-11.
- Minors may not legally consent to have sexual intercourse. MCA § 97-3-65(b).
- Minors may not legally consent to be fondled. MCA § 97-5-23(1).
- Minors are protected by an extended statute of limitations. MCA § 15-1-59.
It’s important to be aware of the legal status of the persons with whom you are dealing in land transactions, estates, contracts, and many other legal matters. In Mississippi, minors have many legal protections and disabilities that the courts will zealously guard.
November 15, 2010 § 2 Comments
We’ve already discussed how to close a guardianship, but what exactly are the events that trigger closing it?
MCA § 93-13-75:
The powers of a guardian for a minor cease when the ward attains the age of 21.
The chancellor may, in his or her discretion, terminate the guardianship after the ward attains the age of 18.
When the funds and personal property of the ward do not exceed $2,000, and there is no prospect of further funds coming into the guardianship, the court may terminate the guardianship and may impose conditions and restrictions for the deposit and expenditure of the funds. This provision applies not only to guardianships for minors, but also to guardianships for a “person of unsound mind, or convict of felony.”
MCA § 93-13-125:
In a guardianship for a person of unsound mind but not “properly adjudged mentally unsound,” the court may terminate the guardianship “If at any time it be made to appear to the satisfaction of the court that such person has been restored to sanity, such guardianship may be terminated and ended as now provided by law.”
MCA § 93-13-133:
If the court is satisfied that a person of unsound mind is restored to sanity, or that an habitual drunkard, or habitual user of cocaine, or opium or morphine has “sufficiently reformed to justify it …” the court may terminate the guardianship.
MCA § 93-13-135:
The guardianship of a convict of felony ceases when the term of imprisonment expires or the convict dies.
MCA § 93-13-151:
Guardianship of a person who is found in need of mental treatment shall end when the ward is “restored to reason” and is so adjudicated by a court of competent jurisdiction.
MCA § 93-13-161:
If a guardian has been appointed for the estate of a person in the armed forces or a merchant seaman who is “officially reported or listed as missing in action, or interned in a neutral country, or beleagured, besieged, or captured by an enemy,” the guardianship may be terminated as follows:
At any time upon petition signed by the absentee, or on petition of an attorney-in-fact acting under power of attorney granted by the absentee, the court shall direct the termination of the guardianship and the transfer of all property held thereunder to the absentee or the designated attorney-in-fact. Likewise, if at any time subsequent to the appointment of a guardian it shall appear that the absentee has died and an executor or administrator had been appointed for his estate …”
MCA § 93-13-77:
” … it shall be made the duty of an executor or administrator of a deceased guardian to make final settlement in a of their testator’s or intestate’s guardianship accounts in the chancery court in which the same mey be pending …”
It is obvious that a guardianship terminates on death of the ward. In such a case, an estate should be opened, a final accounting filed and noticed, and the assets transferred to the estate once the guardianship is closed.
A guardianship solely of the person terminates on emancipation of the ward, or when it is shown to the court no longer to be necessary.
July 16, 2010 § 9 Comments
[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
- 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.
- 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.
- 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.”