By Brad Golmon

Holcomb Dunbar attorneys regularly represent families and individuals involved in conservatorships and guardianships.   These types of proceedings can by trying events and Holcomb Dunbar attorneys can add certainty in these situations.   As of January 1, 2020, the law relating to conservatorships and guardianships shifted in a way that adds some level of complexity, but also adds some important flexibility and equally important notices regarding rights and accountability.  This Act is called the Mississippi Guardianship and Conservator Act, otherwise referred to as the GAP Act (Guard and Protect vulnerable adults and children Act).

It begins in Article 1 with General Provisions and Definitions.  One of the most important definitions is the definition of the phrase, “Less Restrictive Alternative.” (Section 201 (i)).   The Act allows for a well-tailored guardianship or conservatorship Order that does something less than removing the Ward’s full rights.  That discretion is vested in the Chancellor and is subject to proof and argument at a properly noticed hearing.  Under the prior law a guardianship or conservatorship was an all or nothing affair and this flexibility is one of the best things about the GAP Act.   Those definitions also expressly include a limited conservatorship and a limited guardianship.  Further details about the scope of a guardianship or conservatorship appear later in the Act.

The General Provisions state that concepts of law and equity still apply, (Section 103) as do the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence.  (Section107).  It is still true that a clerk issues Letters of Guardianship or Conservatorship, and the underlying pattern of documents in a “filing” remains the same with an addition of a few items. (Section 108).    The Oath and Bond remain the same and the Order may limit the powers of the conservatorship or guardianship.  There is a newly introduced Certificate of Attorney and a newly introduced Certificate of Fiduciary.  (Sections 108(1) and 117).  These new provisions increase accountability.  The attorney must certify that he has explained the fiduciary obligations to the Fiduciary and the Fiduciary must affirm that he or she understands the limits of his or her role.  (Section 108(1)).  The definitions specifically allow co-guardians and co-conservators, subject to the court’s discretion (Section 110) and allow appointment of successors. (Section 111).

A hearing is conducted in much the same way as under the prior law, but the notice of the hearing must include 16 point font, essentially a warning to the person being served, that their rights could be substantially effected. (Section 113).  This increased font size warning increases the level of notice.

A Guardian Ad Litem may be appointed by the court at any time.  (Section 115).  The new law does expressly allow for an interested person to request notice of what is going on in the case.  That interested person must justify the request.  (Section 116).

An important new element is that the guardian or conservator must disclose bankruptcy filings, any felony convictions, any crimes involving dishonestly or neglect or violence or any other relevant crime. (Section 117).

As under the prior law, attorney’s fees may only be paid with court approval, and a guardian or conservator may be paid fees subject to court approval as well.  (Section 119).  

The Act applies to cases filed after January 1, 2020, but it could also apply, if the court finds it proper, to cases commenced before January 1, 2020, unless it would prejudice the rights of the parties. (Section 125).

Article 2 is entitled Guardianship of Minor.  That Article requires a similar bold warning on a summons and does allow for the court to appoint an attorney for the minor.  (Sections 202 and 204).  The minor has a right to attend a hearing.  (Section 205).  An Order appointing a guardian for a minor can be issued, but it may also limit the rights of the guardian.  (Section 206).  There are provisions for an emergency guardianship to be issued, but such an emergency Order will only last for sixty (60) days.  (Section 207).  The Act specifically outlines guardianship duties and powers and clearly identifies that the guardian serves as a fiduciary.  (Section 208 and 209).

Article 3 is entitled Guardianship of Adult.  Article 3 contains specific and new definitions for the imposition of a guardianship over an adult.  A guardianship may be ordered if an adult “lacks the ability to meet essential requirements for physical health and safety or self-care.”  Less restrictive alternatives must be considered.  (Section 301).  This is a substantial departure from the prior law and requires a balancing of the rights and abilities of the proposed ward.  The process is the same in that a Petition is filed first.  That could be filed by a Judge, a Clerk, a family friend or other interested person.  The same kind of a bold warning is required, and a hearing can only be held on seven (7) days notice.  The statute requires serving the Ward, plus one other family member.  A guardianship under this statute can exist even where a conservatorship exists.  (Section 301).  Generally speaking, guardianship terms regard care of the Ward while the conservatorship terms involve financial management for the benefit of the Ward.

A Guardian ad Litem may be appointed.  (Section 304).  The proof at any such hearing must include certification by either two doctors or one doctor, plus a psychiatrist, nurse practitioner or physician assistant.  (Section 305).  The Affidavits may be sufficient, but the court may require that the professionals be personally summoned to the hearing. (Section 304).  The Ward has rights at the hearing and may present evidence and use subpoena power.  (Section 306).

This guardian may be a family member or the Clerk or such other best qualified person.  (Section 308).  The Order of Appointment may only be entered if there is clear and convincing evidence that the ward cannot meet his needs and the Order should also describe the level of restriction that is necessary and only order the level of restriction that is, in fact, necessary.  (Section 309).  The court should state the basis for a full or limited guardianship.  (Section 309(2) and (3)). The order must state the specific guardianship powers.  (Section 309(4)). If the Chancellor finds the respondent is incapable of caring for himself, then the statute requires the appointment of a Guardianship.  (Section 309(6)).

As in the guardianship for a minor, there is a provision for emergency guardianship, but it only last sixty (60) days.  (Section 311).  The statute lists the duties and powers of this type of guardian and also mandates that this type of guardian is a fiduciary.  (Sections 312 and 313).  The court can require a guardianship plan after the guardian is appointed and can require a plan if there is a significant change in circumstance.  (Section 315).  A guardian’s well-being report is required if there is a significant change in circumstance or if the guardian seeks to deviate from the plan.  (Section 316).  The Court can set up regular monitoring of the guardianship to ensure that the Ward is being treated properly. (Section 316).

The statute does explicitly state the provisions under which removal of a guardianship may take place, as well as termination or modification of a guardianship in the event of rehabilitation of the Ward. (Section 317 and 318).

Article 4 governs a Conservatorship and contemplates and regulates both a conservatorship for a minor and a conservatorship for an adult.  For a minor, the conservatorship will give weight to any recommendation of a parent about what an appointment is in the minor’s best interests and will take into account the property interests of a minor.  If appointment of a conservator is necessary or desirable to obtain or provide funds or other property needed for the support, care, education, or welfare of the minor, then such a conservator will be appointed.  (Section 401(a)).

For an adult, there must be clear and convincing evidence that the adult is unable to manage property or financial affairs because of a limitation on the adults ability to receive valid information or to make or communicate decisions, even with use of appropriate support of services or technological assistance.  A conservatorship over an adult may also be created if the adult is missing, detained, incarcerated or unable to return to the United States.  The requirement that the conservatorship be no more restrictive than is necessary is also present in this Article of the Act.  The court may not establish a full conservatorship if a limited conservatorship or other, less restrictive alternative would meet the needs of the respondent.  (Section 401(b)).

The process is begun with a petition, and the notice of the petition must have specific highlighted and bold language that puts the person served with the petition on notice that the petition could seriously affect their rights.  (Section 702).  A hearing may be held on seven (7) days notice and notice must be given to both the Ward and at least one other relative who resides in Mississippi, other than the Petitioner.  (Section 403).  The statute does identify a priority of who should be chosen to receive such notice, beginning with the kinds of relationships that will most likely be closest to the Ward.  (Section 403(2) and (3)).  On the filing of such a Petition, the court can issue an Order preserving property while that proceeding is pending.  (Section 404).  The court may also appoint a Guardian Ad Litem and also appoint an attorney for the Ward.  (Section 405 and 406).  A Chancery Court must conduct a hearing to determine whether a conservatorship is needed.  If the court appoints a Guardian Ad Litem prior to the hearing, the Guardian Ad Litem must be present at the hearing and present the interest of the Respondent.  (Section 407(1)).  The proof, at such a hearing, must include certificates by either two licensed physicians or one licensed physician and one licensed  psychologist, nurse practitioner, or physician’s assistant.  (Section 407(2)).  The Chancery Judge can require attendance of the professionals if the Judge finds that necessary. (Section 407).

At the hearing, the Respondent has the right to present evidence and subpoena witnesses and documents and to examine the witnesses and otherwise fully participate in the hearing.  (Section 408(1)).  Unless specifically excused by the court for good cause, a proposed conservator must attend the hearing.  (Section 408(2)).  Such a hearing may be closed on the request of the Respondent and a showing of good cause.  Records relating to such a hearing may be sealed and held confidential, including the conservator’s plan and a conservator’s report.  (Section 409).

Selection of a conservator is in the discretion of the court and should be in the best interest of the Respondent.  If two or more persons request this power, the court shall select the best qualified person.  A Chancery Clerk may serve as a conservator as well.  (Section 410).

At the end of a hearing, the court may enter an Order appointing a conservator, but may only impose a full conservatorship Order if that is necessary and should state the reason that a limited conservatorship Order would not meet the needs of the Ward. (Section 411).   The court must include a specific finding by clear and convincing evidence that the standards have been met.  (Section 411(2)(a)).   This includes clear and convincing evidence that the Respondent was given proper notice of the hearing.  (Section 411(5)).  As a part of the Order establishing the conservatorship, the court must identify and include the contact information for any person that is subsequently entitled to notice of the rights of the Ward, or the notice of sale or surrender of a lease to the primary dwelling of the individual or notice that the conservator has delegated a power that requires court approval, or that the conservator will be unavailable to perform the conservator’s duties for some period of time greater than one month.  (Section 411).  The court may also order a conservatorship plan, may address or limit access to court records relating to the conservatorship and may require notice of a transaction involving a substantial conflict between the conservator’s fiduciary duties and person interests. (Section 411).   If the Ward is a minor, then certain family members are required to be notified of the entry of a conservatorship.  (Section 411(7)).

Finally, if a conservatorship is not appointed, the costs and expenses of the proceeding shall be paid by the person instituting the proceedings.  (Section 411(8)(b)).

Once the Order is entered, that Order must be served upon the Ward within fourteen (14) days. (Section 410).   An emergency conservatorship may be entered but that emergency ruling will only last for sixty (60) days and must be promptly followed by a full conservatorship hearing.  (Section 413). 

The Act lists the powers of a conservatorship that require court approval.  This list of powers includes, importantly, making a gift, selling, or encumbering the primary dwelling of the Ward and other important steps.  (Section 414). 

The Court may require a bond of the conservator or may waive the bond.  (Section 416).    The bond must be filed, and the form of a bond is given in the statute.  (Section 416(4)).

The Act describes the duties of a conservatorship and makes it clear that the conservator is a fiduciary of the Ward.  (Section 418).  The Act also describes the parameters of a conservator’s plan and budget, if that is required by the court.  (Section 419).   Unless the inventory requirement has been waived, the conservator has ninety (90) days to file an inventory.  (Section 420).

The Act also describes administrative powers of the conservator that do not require court approval.  This is primarily the right to continue doing things that the Ward had done prior to the conservatorship.  (Section 421).   The Act governs distribution from a conservatorship estate and, unless specifically listed under the provisions for acts that do not require court approval or specially, in an approved plan, court approval will be required.  (Section 422).

A conservator is required to report to the court and file an accounting on an annual basis.  (Section 423).  The conservator must also disclose any conflict of interest or business relationship with the Ward.  (Section 425).  The Act states that property interests of a Ward in conservatorship are estate property and are not transferrable or assignable by the Ward and are not subject to levee, garnishment or other process of law unless the court approves and allows such a claim.  (Section 424).  The person that assists or deals with a conservator in good faith and for value other than transaction requiring the court Order is protected, as though the conservator properly exercised any power in question.  (Section 426).

A process is described for presenting and allowing a claim against a conservatorship.  (Section 427).  Such a claim should be filed and, upon filing, will be allowed if it is not disallowed in whole or in part by the conservator and records entered delivered to the Claimant.  The conservator has ninety (90) days to do so.  (Section 427(2)).  A Claimant whose claim has not been paid may proceed to the Chancery Court for an Order regarding payment of such a claim.  (Section 417(3)).  The court can conduct a hearing taking into account a wide variety of issues, including the solvency of the estate.  (Section 427(5)).

Personal liability of a conservator is possible, but the Act states the primary principle is that the conservator is not personally liable on a contract properly entered into in a fiduciary capacity in the course of administration of a conservatorship.  (Section 428).  A conservator may be personally liable if the obligation arises from an act or omission occurring in the course of administration of the conservatorship estate, only if the conservator is personally grossly negligent or in breach of a fiduciary duty.  (Section 428(2)).  A question of liability of a conservator or the conservatorship estate may be addressed in a hearing by the court.  (Section 428 (4)).

A conservator may be removed, and a successor appointed. (Section 429).   This may occur if a conservator fails to uphold his or her duties.  A hearing must be held, and a petition must be filed, except that a court may decline to hold a hearing if the petition based on the same or similar facts was filed during the preceding six months.  (Section 429)(2)(a)).

A conservatorship may be lifted if a minor attains adulthood or becomes emancipated.  (Section 430).  A conservatorship over an adult may be lifted if proof is submitted that the basis for appointment no longer exist and that would be in the best interest of the Ward to have the conservatorship lifted.  (Section 430)

A safe harbor of up to $25,000.00 exists if a person transfers assets for the benefit of a minor under certain specific circumstances, even if there is a conservatorship Order to the contrary.  (Section 431).  This includes transfers to an ABLE account (Section 431).

On the whole, this new GAP Act substantially imports ideas from the prior laws, but it does add new and useful powers to the Chancery Court.  The primary change is that the conservatorship or guardianship may be limited, and if it is a full conservatorship or guardianship, the court should state why full conservatorship or guardianship is necessary.  The concepts of an attorney certification and fiduciary certification are also valuable as are the bold large font notice provisions.  The Act is much more clear about a budget and plan of care for the Ward.  The Act also clearly states standards for the imposition of both guardianships and conservatorships and when they should be removed.

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Jonathan Masters

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