MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Green (72nd)

AN ACT TO AMEND SECTIONS 93-13-1, 93-13-11, 93-13-13 AND 93-13-15, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A GUARDIAN OF A CHILD MAY PURSUE A CLAIM OR BRING SUIT ON BEHALF OF A MINOR WITHOUT OPENING A GUARDIANSHIP; TO REQUIRE COURT APPROVAL OF ANY SETTLEMENT; TO PROVIDE FOR THE DEPOSIT AND DISBURSEMENT OF ANY PROCEEDS FOR THE BENEFIT OF A CHILD; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 93-13-1, Mississippi Code of 1972, is amended as follows:

93-13-1. (1) The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor. If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to its custody. But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appear that such person is unsuitable, and appoint a suitable person.

(2) A natural guardian may pursue a claim or bring suit on behalf of a minor in the name of the natural guardian as next of kin without opening a guardianship. Any settlement obtained by a natural guardian shall be approved by the chancery court and any proceeds for the benefit of the child shall be deposited in an FDIC account for the child who shall receive such funds upon obtaining the age of majority, unless the court for good cause shown determines that it is in the best interest of the child to disburse funds to the natural guardian for the medical, educational or support needs of the child. A finding by the court to disburse such funds to the natural guardian shall be stated in the order by the chancery court.

SECTION 2. Section 93-13-11, Mississippi Code of 1972, is amended as follows:

93-13-11. Upon qualifying the testamentary guardian shall have the same right to control the person and tuition of the child, to manage the child's estate, real and personal, to receive the profits thereof, to prosecute suits and actions concerning the same and to pursue a claim for the child in the manner provided for a natural guardian in Section 93-13-1, as a guardian appointed by the court would have, and he shall be subject to the same liabilities and duties.

SECTION 3. Section 93-13-13, Mississippi Code of 1972, is amended as follows:

93-13-13. When a testamentary guardian has not been appointed by the parent, or if appointed, has not qualified, the chancery court of the county of the residence of a ward who has an estate, real or personal, shall appoint a general guardian of his estate for him or may appoint a general guardian of his person and estate for him. If a ward have no estate the chancery court of the county of the residence of such ward may appoint a general guardian of his person only for him, giving preference in all cases to the natural guardian, or next of kin, if any apply, unless the applicant be manifestly unsuitable for the discharge of the duties. The court may allow a minor who is over the age of fourteen (14) years and under no legal disability except minority to select a general guardian, by petition to the court, signed and acknowledged before the clerk or a justice of the peace, and duly filed, but if the general guardian so selected by the minor be guardian of the person and estate of the minor or the person only of the minor then such general guardian so selected by said minor shall be a suitable and qualified person who is a resident of this state and the county in which the guardianship proceedings are pending. If the said minor desires to so select a person as general guardian of his person and estate or of his person only who is a resident of this state but who is not a resident of the county in which the guardianship proceedings are pending he may do so but thereupon such guardianship proceedings or cause shall be transferred to the county of the residence of such general guardian so selected and thereupon the minor shall be and become a legal resident of the county of the residence of such general guardian so selected. The said minor may select in the above manner a general guardian of his estate only which may be a corporation but such corporation shall be duly qualified to do business in this state and otherwise suitable. If said minor select a person other than the natural guardian to be either the general guardian of his estate or general guardian of his person and estate or general guardian of his person only the court shall, notwithstanding, have power to appoint the natural guardian, if deemed suitable. And if any such minor over the age of fourteen (14) years fail to appear and select a general guardian of his estate only or of his estate and person or of his person only when summoned, or if the general guardian chosen fail to qualify, and no other be chosen in his stead, the court shall appoint a general guardian to the minor as if he were under fourteen (14) years. When any ward, who is not a resident of the state, owns property, real or personal, in this state, the chancery court of the county in which the property may be, may appoint a general guardian for such ward who shall be the general guardian of his estate only. If the ward be a minor over fourteen (14) years of age and under no legal disability except minority, the selection of guardian may be made before a clerk of a court of record of the state or county of his residence, and a certificate of such clerk, under his seal of office, shall be received as evidence of the selection. A guardian appointed by the court may pursue a claim for the child in the manner provided for a natural guardian in Section 93-13-1.

SECTION 4. Section 93-13-15, Mississippi Code of 1972, is amended as follows:

93-13-15. (1) Every guardian of any ward heretofore or who may be hereafter appointed by any chancery court or chancery clerk whose act is approved by the chancery court, or by any chancellor, is in fact a general guardian to the extent of his appointment according to the terms of the order or decree of appointment, such as: guardian of the estate of the ward is the general guardian of the ward and his estate; the guardian of the person and estate of a ward is the general guardian of the person and estate of such ward; the guardian of the person only of a ward is the general guardian of the ward named. In addition to the rights and duties of the guardian contained in this chapter, he shall also have those rights, powers and remedies as set forth in Section 91-9-9 and Section 93-13-1.

(2) All orders and decrees now or hereafter made in which the word "general" is not used in conjunction with the word "guardian" shall be construed and applied as if the word "general" had been used in conjunction with the word "guardian."

(3) After May 5, 1960, all orders or decrees appointing any guardian or ward shall designate such guardian as "general" guardian.

SECTION 5. This act shall take effect and be in force from and after July 1, 1997.