What is a Guardianship?
A guardianship created pursuant to Mississippi Code Chapter 45 is a method for caregivers to gain legal and financial control over a disabled family member’s affairs and assets. Mississippi permits the creation of a guardianship over the estate of any minor or individual of unsound mind. Thus, a guardianship may be created over a child, teenager, adult, or elderly family member.
A guardianships may be either an "LPS" (lacking capacity to consent) or a "UHS" (unable to satisfactorily manage his or her estate). LPS is a higher standard that must be met for the creation of a guardianship generally over an adult, while UHS is a different standard typically met for minors with respect to property and affairs.
For the purposes of a guardianship, a "minor" is any person under the age of twenty-one years by LPS or UHS and under the age of eighteen by other means (i.e. for the purpose of transfer on death deeds and bank accounts) . A "disabled person" is a person "unable by reason of being a minor or of physical or mental condition to receive and evaluate effectively information or to communicate decisions to such an extent that the person lacks ability to manage his financial resources or to meet essential requirements for his physical health and safety."
The Court cedes to the guardian the ability to act on behalf of the disabled person and gives the guardian the authority to: maintain the disabled person’s expenses and finances; prosecute or defend any action at law; incur reasonable obligations for necessary expenditures in protecting the disabled person’s property; and collect and deposit money as custodian for the estate of the disabled person.
Guardianship over the estate, once granted by the court, grants the guardian the right to control the finances of the protected person. Similarly to the authority granted by a power of attorney document, the authority of a guardian however is subject to supervision by the Court, which oversees the actions of the guardian and may require the guardian to file periodic accountings of all transactions.
Forms of Guardianship in Mississippi
A guardianship can be temporary, permanent, or limited in scope and can be established by petition to the Chancery Court. When a temporary guardianship is established, it is with the understanding that it is for a short, specified period of time. It is normally followed by a permanent guardianship. A limited guardianship limits some or all of the rights of the ward as set out by the Court. A permanent guardianship is one wherein all legal rights are taken from the Ward. For example, an adult ward may potentially be capable of taking care of some of his business affairs, but not all of them. However, since the court is trying to set forth the least restrictive alternative, a limited guardianship may be better than a full fledged permanent guardianship.
Establishing Guardianship Procedures
In Mississippi, the legal process for establishing guardianship over someone’s person or property is initiated by filing a formal petition with the appropriate court. The requirements regarding the contents of the petition and the guardianship investigation and hearing overseen by the court are governed by the Mississippi Code.
The process is not the same in other states. For example, in Texas, there is no court hearing for a physician to complete a Medical Power of Attorney. Compare this with a similar document in Mississippi that is subject to a court hearing.
Once a petition is filed, the court will appoint an investigator to oversee an interview of the proposed ward. The investigator will also interview the proposed guardian. An investigator’s report is then prepared for the court.
Here is the wording from Mississippi Code Annotated Section 93-13-63 regarding the procedure to obtain a guardianship:
93-13-63. Hearing on petition; order appointing
After the filing of the petition, the court shall conduct a hearing, of which at least twenty-four (24) hours’ notice shall be given to the proposed ward. At the hearing, the court shall hear all evidence offered, whether in opposition to or in support of the application for the guardianship or conservatorship. The court shall have the authority to appoint, as an officer of the court, an impartial physician or psychiatrist to examine the proposed ward, to interview the proposed guardian or conservator, and to testify as to his findings at the hearing. If the court determines that a guardianship or conservatorship should be established, it shall enter an order appointing the guardian or conservator. If necessary, the court shall designate a bond in any amount it may deem appropriate.
The above procedure is different from a Durable Power of Attorney in that a court is not required to establish one. In fact, a Durable Power of Attorney can be revoked by the principal so long as he or she is legally capable of understanding the nature and effect of the document.
Duties of a Guardian
The powers of a guardian are substantial and the duties manifold. As such, this is not a position that the Court takes lightly. Guardians are accountable to the Court in the management of their wards. They will have to file an annual accounting with the Court demonstrating how the Ward’s money has been spent and what property has been acquired.
The guardian’s time, effort, and his or her remuneration for the services are all subject to approval by the Court. All actions of the guardian are supervised and monitored by the Court. Mississippi Code Section 93-13-251(2) gives a list of specific powers that may be granted to a guardian. The Court will not give every power listed to every guardian. For example, the Court may appoint a guardian who has power subject to prior court approval, to the extent the Court approves it. Some of the other powers may be granted without limitation, but are all subject to accountability to the Court.
M.C.A. Section 93-13-251(1) Details some of the duties, which include:
- Application for licenses, membership bonds and values;
- Management, sale, encumbrance, leasing and distribution of real and personal property;
- Entering into contracts;
- Paying just claims;
- Payment and collection of debts and claims;
- Retention of assets, including the discretion to refuse to transfer the title to such assets from the estate of the disabled person;
- Renewal of obligations;
- Starting appropriate actions to recover assets;
- Begin involuntary commitment proceedings;
- Put the Ward in the possession of the property;
- Insure any of the property of the ward.
- Even though the Court has to approve the guardian’s actions (or the taking of a particular action), if the Court finds:
- The act or transaction was in good faith;
- The interests of the ward were adequately protected; and
- The guardian is an undischarged bankrupt (or voluntarily paid a composition under bankruptcy laws or made to an approved plan by creditors),
The act or transaction MAY NOT BE INVALIDATED.
It is important for one to note that while a guardian carries the responsibility he or she does NOT have to carry the Ward’s financial responsibility. The guardian and the Ward are separate legal entities. However, the guardian can be held personally responsible if he or she misuses funds or property belonging to the Ward.
Qualifications for a Guardian
Mississippi law does not contain a pre-requisite age requirement to become a guardian, but most Mississippi courts prefer that guardians be at least one year older than the person for whom they would act. There are many factors the court will consider when appointing a guardian, including but not limited to the following: (1) availability of family members; (2) relationship to the proposed ward; (3) the situation or circumstance of the potential guardian; and (4) if there is a pending divorce, the guardianship may be given to the remaining parent .
A guardian proposed to be selected in place of a family member must show that they are competent and able to act in the best interest of the proposed ward. A willingness to fulfill the responsibilities of the guardian is also an important consideration for the judge. Examples of other individuals who the court may appoint as guardian include neighbors and friends, the administrator of the proposed ward’s estate or income from the property, a bank or trust company designating the person. Every proposed guardian must undergo a criminal background check.
How to End a Guardianship
A guardianship can be terminated by agreement of all interested parties or by a petition to the court. Usually, the court will conduct a hearing on a petition to terminate a guardianship but the parties can agree to terminate without a hearing.
To terminate a guardianship, it is not necessary to file a full accounting with the court as required to close a guardianship.
In cases where the person under the guardianship has recovered just enough that the court finds that there is no longer a need for the guardianship, the guardianship can be ended and the assets turned over to the person under the guardianship.
Often the person under guardianship goes back to work and over time the assets are sufficient to meet his or her needs. The guardian can request that the court terminate the guardianship and allow the transfer of a portion of the assets to the person under the guardianship and allow the guardian to retain a portion just sufficient to cover the person’s needs into the future.
Legal Help and Support
Mississippi residents who are contemplating legal guardianship for a family member can benefit from local legal resources and assistance programs designed to help them understand the process and fill out the necessary forms. These resources may also provide counseling services to help people deal with the emotional stress of dealing with a family member’s medical, physical or mental decline.
The Mississippi Center for Legal Services provides basic information about guardianship on its website. It also provides a list of community-based legal services in Mississippi that residents may be able to utilize to help them complete the process of obtaining guardianship.
Legal Aid Clinic at Mississippi College School of Law helps low-income people navigate the guardianship process in Jackson , MS. The clinic’s website has information about the process, including instructions about what forms are necessary for both adult and minor guardianships. People who utilize this clinic must apply directly with the clinic for assistance.
The Mississippi Coalition Against Domestic Violence is a nonprofit organization with assistance to help the elderly and disabled obtain guardianship. People seeking assistance can contact the Coalition for information about services.