AN ACT TO CREATE THE MISSISSIPPI GUARDIANSHIP AND CONSERVATORSHIP ACT; TO ENACT A SHORT TITLE; TO PROVIDE DEFINITIONS; TO PROVIDE THAT THE PRINCIPLES OF LAW AND EQUITY ARE SUPPLEMENTAL TO THE ACT; TO PROVIDE SUBJECT-MATTER JURISDICTION; TO PROVIDE FOR TRANSFER OF PROCEEDINGS; TO ESTABLISH VENUE; TO CLARIFY APPLICATION OF THE RULES OF EVIDENCE, RULES OF CIVIL PROCEDURE AND RULES OF APPELLATE PROCEDURE; TO PROVIDE FOR ISSUANCE OF LETTERS OF GUARDIANSHIP OR CONSERVATORSHIP; TO PROVIDE THE EFFECT OF ACCEPTANCE OF APPOINTMENT AS A GUARDIAN OR CONSERVATOR; TO AUTHORIZE CO-GUARDIANS AND CO-CONSERVATORS; TO AUTHORIZE JUDICIAL APPOINTMENT OF SUCCESSORS; TO PROVIDE FOR THE EFFECT OF DEATH, REMOVAL OR RESIGNATION OF A GUARDIAN OR CONSERVATOR; TO REQUIRE NOTICE OF HEARINGS; TO ALLOW WAIVER OF NOTICE; TO AUTHORIZE APPOINTMENT OF A GUARDIAN AD LITEM; TO AUTHORIZE A PERSON TO REQUEST NOTICE; TO REQUIRE DISCLOSURE OF BANKRUPTCY OR CRIMINAL HISTORY; TO AUTHORIZE COMPENSATION AND REIMBURSEMENT OF EXPENSES; TO IMMUNIZE THOSE SERVING FROM LIABILITY FOR AN ACT OF THE WARD; TO AUTHORIZE ONE APPOINTED TO PETITION THE COURT FOR INSTRUCTION OR RATIFICATION; TO PROVIDE WHEN A THIRD PARTY NEED NOT ACCEPT THE AUTHORITY OF THE APPOINTEE; TO AUTHORIZE A TEMPORARY SUBSTITUTE GUARDIAN OR CONSERVATOR; TO AUTHORIZE REGISTRATION OF AN OUT-OF-STATE GUARDIAN OR CONSERVATOR; TO AUTHORIZE GUARDIANSHIP OF A MINOR; TO REQUIRE A PETITION FOR APPOINTMENT; TO REQUIRE NOTICE OF HEARING; TO AUTHORIZE APPOINTMENT OF AN ATTORNEY FOR THE MINOR; TO AUTHORIZE THE MINOR'S ATTENDANCE AT A HEARING; TO SPECIFY THE RIGHTS OF THE MINOR; TO AUTHORIZE A LIMITED GUARDIANSHIP; TO AUTHORIZE AN EMERGENCY GUARDIAN; TO PROVIDE THE DUTIES AND POWERS OF A GUARDIAN; TO PROVIDE FOR THE REMOVAL OF A GUARDIAN AND TERMINATION OF A GUARDIANSHIP; TO PROVIDE FOR THE GUARDIANSHIP OF AN ADULT; TO REQUIRE A PETITION FOR APPOINTMENT OF A GUARDIAN; TO REQUIRE NOTICE OF A HEARING; TO AUTHORIZE APPOINTMENT OF A GUARDIAN AD LITEM; TO REQUIRE PROFESSIONAL EVALUATION; TO SPECIFY THE RIGHTS OF THE ADULT AT A HEARING; TO PROVIDE FOR CONFIDENTIALITY OF RECORDS; TO SPECIFY WHO MAY BE A GUARDIAN; TO PROVIDE STANDARDS FOR AN ORDER APPOINTING A GUARDIAN FOR AN ADULT; TO REQUIRE NOTICE OF AN ORDER OF APPOINTMENT; TO AUTHORIZE AN EMERGENCY GUARDIAN FOR AN ADULT; TO SET FORTH THE DUTIES AND POWERS OF A GUARDIAN OF AN ADULT; TO AUTHORIZE LIMITATIONS ON THE GUARDIAN'S POWER; TO REQUIRE A GUARDIAN'S PLAN AND AUTHORIZE AMENDMENT THEREOF; TO REQUIRE WELL-BEING REPORTS AND MONITORING OF THE GUARDIANSHIP; TO AUTHORIZE REMOVAL OF A GUARDIAN AND APPOINTMENT OF A SUCCESSOR; TO PROVIDE FOR TERMINATION OR MODIFICATION; TO AUTHORIZE CONSERVATORSHIP OF THE ESTATE OF A WARD, WHETHER A MINOR OR AN ADULT; TO REQUIRE PETITION FOR APPOINTMENT OF A CONSERVATOR; TO PROVIDE FOR NOTICE AND HEARING; TO AUTHORIZE THE COURT TO ORDER PRESERVATION AND APPLICATION OF THE ESTATE DURING THE PENDENCY OF THE PROCEEDING; TO AUTHORIZE APPOINTMENT OF A GUARDIAN AD LITEM; TO AUTHORIZE APPOINTMENT OF AN ATTORNEY FOR THE RESPONDENT; TO REQUIRE PROFESSIONAL EVALUATION; TO SPECIFY THE RESPONDENT'S RIGHTS; TO PROVIDE FOR CONFIDENTIALITY; TO PROVIDE WHO MAY SERVE AS CONSERVATOR; TO REQUIRE AN ORDER APPOINTING A CONSERVATOR; TO REQUIRE NOTICE OF THE APPOINTMENT OF A CONSERVATOR; TO AUTHORIZE APPOINTMENT OF AN EMERGENCY CONSERVATOR; TO LIMIT THE POWERS OF A CONSERVATOR; TO PROVIDE FOR PETITION FOR CERTAIN RELIEF AFTER THE APPOINTMENT OF A CONSERVATOR; TO REQUIRE BOND, OATH AND ASSET-PROTECTION ARRANGEMENTS; TO REQUIRE CERTAIN TERMS FOR THE BOND; TO PROVIDE FOR THE DUTIES AND POWERS OF A CONSERVATOR; TO REQUIRE A CONSERVATOR'S PLAN AND AUTHORIZE AMENDMENT THEREOF; TO REQUIRE INVENTORY AND RECORD-KEEPING; TO AUTHORIZE ADMINISTRATIVE POWERS OF A CONSERVATOR NOT REQUIRING COURT APPROVAL; TO AUTHORIZE DISTRIBUTION FROM THE CONSERVATORSHIP ESTATE; TO REQUIRE REPORTING, ACCOUNTING AND MONITORING; TO BAR ATTEMPTED TRANSFER OF PROPERTY BY THE WARD; TO AUTHORIZE VOIDING OF A TRANSACTION THAT CONSTITUTES A CONFLICT OF INTEREST; TO PROTECT PERSONS DEALING WITH A CONSERVATOR IN GOOD FAITH; TO AUTHORIZE PRESENTATION AND ALLOWANCE OF CLAIMS AGAINST THE ESTATE; TO PROVIDE FOR THE PERSONAL LIABILITY OF A CONSERVATOR; TO AUTHORIZE REMOVAL OF A CONSERVATOR AND APPOINTMENT OF A SUCCESSOR; TO AUTHORIZE TERMINATION OR MODIFICATION OF A CONSERVATORSHIP; TO AUTHORIZE CERTAIN TRANSFERS WITHOUT APPOINTMENT OF A CONSERVATOR IF IN THE BEST INTEREST OF A MINOR; TO AMEND SECTION 9-1-49, MISSISSIPPI CODE OF 1972, TO CONFORM A COURT CLERK'S RESPONSIBILITY TO SUBMIT CERTAIN INFORMATION TO THE DEPARTMENT OF PUBLIC SAFETY; TO AMEND SECTION 43-47-29, MISSISSIPPI CODE OF 1972, TO CONFORM THE AUTHORITY OF THE DEPARTMENT OF HUMAN SERVICES TO SEEK APPOINTMENT OF A CONSERVATOR FOR A VULNERABLE PERSON; TO AMEND SECTION 45-9-103, MISSISSIPPI CODE OF 1972, TO CONFORM PROVISIONS CONCERNING TRANSMISSION OF FEDERAL PROHIBITED-PERSON INFORMATION TO THE FBI; TO AMEND SECTIONS 81-5-62, 81-12-145 AND 81-14-363, MISSISSIPPI CODE OF 1972, TO CONFORM PROVISIONS CONCERNING ACCOUNTS PAYABLE UPON DEATH; TO AMEND SECTION 91-8-103, MISSISSIPPI CODE OF 1972, TO CONFORM DEFINITIONS WITH REGARD TO TRUST; TO AMEND SECTIONS 93-14-102 AND 93-14-302, MISSISSIPPI CODE OF 1972, TO CONFORM PROVISIONS AFFECTING JURISDICTION OF ADULT GUARDIANSHIP AND PROTECTION PROCEEDINGS AND CONFORM AGE OF MAJORITY; TO REPEAL SECTIONS 93-13-3 THROUGH 93-13-79, 93-13-111, 93-13-121 THROUGH 93-13-135, 93-13-151, 93-13-161, 93-13-181 THROUGH 93-13-187, 93-13-211 THROUGH 93-13-219, 93-13-251 THROUGH 93-13-267 AND 93-13-281, MISSISSIPPI CODE OF 1972, WHICH DEAL WITH GUARDIANSHIPS AND CONSERVATORSHIPS; TO DIRECT THAT TITLE 93, CHAPTER 13, MISSISSIPPI CODE OF 1972, BE RETITLED; TO MAKE TRANSITION PROVISIONS; AND FOR RELATED PURPOSES.
SECTION 1.
Section 101. Short title. This act may be cited as the Mississippi Guardianship and Conservatorship Act.
Section 102. Definitions. In this act:
(a) "Adult" means an individual at least twenty-one (21) years of age or an emancipated individual under twenty-one (21) years of age.
(b) "Claim" includes a claim against an individual or conservatorship estate, whether arising in contract, tort, or otherwise.
(c) "Conservator" means a person appointed by a court to make decisions with respect to the property or financial affairs of a ward. The term includes a co-conservator.
(d) "Conservatorship estate" means the property subject to conservatorship under this act.
(e) "Full conservatorship" means a conservatorship that grants the conservator all powers available under this act.
(f) "Full guardianship" means a guardianship that grants the guardian all powers available under this act.
(g) "Guardian" means a person appointed by the court to make decisions with respect to the personal affairs of the ward. The term includes a co-guardian but does not include a guardian ad litem.
(h) "Guardian ad litem" means a qualified person appointed by the court to inform the court about the ward, to protect the best interests of the ward, and to make recommendations to the court in the best interests of the ward.
(i) "Less restrictive alternative" means an approach to meeting an individual's needs which restricts fewer rights of the individual than would the appointment of a guardian or conservator in the discretion of the court.
(j) "Letters of guardianship or conservatorship" means a record issued by a court certifying a guardian's or conservator's authority to act.
(k) "Limited conservatorship" means a conservatorship that grants the conservator less than all powers available under this act, grants powers over only certain property, or otherwise restricts the powers of the conservator.
(l) "Limited guardianship" means a guardianship that grants the guardian less than all powers available under this act or otherwise restricts the powers of the guardian.
(m) "Minor" means an unemancipated individual under twenty-one (21) years of age.
(n) "Parent" does not include an individual whose parental rights have been terminated.
(o) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(p) "Property" includes tangible and intangible property.
(q) "Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(r) "Respondent" means an individual for whom appointment of a guardian or conservator is sought.
(s) "Sign" means, with present intent to authenticate or adopt a record:
(i) To execute or adopt a tangible symbol; or
(ii) To attach to or logically associate with the record an electronic symbol, sound, or process.
(t) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe.
(u) "Ward" means an adult or minor for whom a guardian or conservator has been appointed under this act.
Section 103. Supplemental principles of law and equity applicable. Unless displaced by a particular provision of this act, the principles of law and equity supplement its provisions.
(2) After notice is given in a proceeding for a guardianship or conservatorship and until termination of the proceeding, the court in which the petition is filed has:
(a) Exclusive jurisdiction to determine the need for the guardianship or conservatorship;
(b) Exclusive jurisdiction to determine how property of the respondent must be managed, expended, or distributed to or for the use of the respondent, an individual who is dependent in fact on the respondent, or other claimant;
(c) Nonexclusive jurisdiction to determine the validity of a claim against the respondent or property of the respondent or a question of title concerning the property; and
(d) If a guardian or conservator is appointed, exclusive jurisdiction over issues related to administration of the guardianship or conservatorship.
(3) A court that appoints a guardian or conservator has exclusive and continuing jurisdiction over the proceeding until the court terminates the proceeding.
Section 105. Transfer of proceeding. (1) This section does not apply to a guardianship or conservatorship for an adult that is subject to the transfer provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Title 93, Chapter 14, Mississippi Code of 1972).
(2) After appointment of a guardian or conservator, the court that made the appointment may transfer the proceeding to a court in another county in this state or another state if transfer is in the best interest of the ward, a final settlement of the conservatorship accounts is made, and the guardian or conservator qualifies as such in the county or state to which the proceeding is being removed.
(3) If a proceeding for a guardianship or conservatorship is pending in another state or a foreign country and a petition for guardianship or conservatorship for the same respondent is filed in a court in this state, the court must notify the court in the other state or foreign country and, after consultation with that court, assume or decline jurisdiction, whichever is in the best interest of the respondent.
(4) A guardian or conservator appointed in another state or country may petition the court for appointment as a guardian or conservator in this state for the same individual if jurisdiction in this state is or will be established. The appointment may be made on proof as outlined in Section 124 of Section 1 of this act.
(5) Notice of hearing on a petition under subsection (4), together with a copy of the petition, must be given to the respondent, if the respondent is at least fourteen (14) years of age at the time of the hearing, and to the persons that would be entitled to notice if the procedures for appointment of a guardian or conservator under this act were applicable. The court shall make the appointment unless it determines the appointment would not be in the best interest of the respondent.
(6) Not later than fourteen (14) days after appointment under subsection (5), the guardian or conservator must give a copy of the order of appointment to the ward, if the ward is at least fourteen (14) years of age, and to all persons given notice of the hearing on the petition.
(a) The county in which the minor resides or is present at the time the proceeding commences; or
(b) The county in which another proceeding concerning the custody or parental rights of the minor is pending.
(2) Venue for a guardianship proceeding for an adult is in:
(a) The county in which the respondent resides;
(b) If the respondent has been admitted to an institution by court order, the county in which the court is located; or
(c) If the proceeding is for appointment of an emergency guardian for an adult, the county in which the respondent is present.
(3) Venue for a conservatorship proceeding is in:
(a) The county in which the respondent resides, whether or not a guardian has been appointed in another county or other jurisdiction; or
(b) If the respondent does not reside in this state, in any county in which property of the respondent is located.
(4) If proceedings under this act are brought in more than one (1) county, the court of the county in which the first proceeding is brought has the exclusive right to proceed unless the court determines venue is properly in another court or that the interest of justice otherwise requires transfer of the proceeding.
(2) If proceedings for a guardianship or conservatorship for the same individual are commenced or pending in the same court, the proceedings may be consolidated.
Section 108. Letters of guardianship or conservatorship.
(1) The clerk must issue letters of guardianship to a guardian who takes the proper oath, posts bond if required, and submits a certificate of attorney and certificate of fiduciary, unless waived by the court.
(2) The clerk must issue letters of conservatorship to a conservator who takes the proper oath, posts bond if required, and submits a certificate of attorney and certificate of fiduciary, unless waived by the court or unless the conservator complies with another asset-protection arrangement required by the court.
(3) The court in its initial order of appointment or at any subsequent time may limit the powers conferred on a guardian or conservator. The court shall direct the clerk to issue new letters of guardianship or conservatorship that reflect the limitation. The court shall direct the clerk to give notice of the limitation by service of a copy of the court's order on the guardian or conservator, the ward, and any other person the court determines.
(4) Limitations on the powers of a guardian or conservator or on the property subject to conservatorship must be stated in the letters of guardianship or conservatorship.
Section 109. Effect of acceptance of appointment. By accepting appointment, a guardian or conservator submits to the personal jurisdiction of the court in this state in any proceeding relating to the guardianship or conservatorship.
Section 110. Co-guardian; co-conservator. When the court deems appropriate, the co-guardian or co-conservator must comply with Section 108.
(2) A person entitled under Section 202 or 302 to petition the court to appoint a guardian may petition the court to appoint a successor guardian. A person entitled under Section 402 to petition the court to appoint a conservator may petition the court to appoint a successor conservator.
(3) A successor guardian or successor conservator appointed to serve may act as guardian or conservator upon compliance with Section 108.
Section 112. Effect of death, removal, or resignation of guardian or conservator. (1) The appointment of a guardian or conservator terminates on the death or removal of the guardian or conservator, or when the court approves a resignation of the guardian or conservator under subsection (2).
(2) A guardian or conservator must petition the court to resign. The petition may include a request that the court appoint a successor. Resignation of a guardian or conservator is effective on the date the resignation is approved by the court.
(3) Death, removal, or resignation of a guardian or conservator does not affect liability for a previous act or the obligation to account for:
(a) An action taken on behalf of the ward; or
(b) The ward's funds or other property.
(2) Proof of notice of a hearing under this act must be made before or at the hearing and filed in the proceeding.
(3) Notice of a hearing under this act must be in at least sixteen-point font, in plain language, and, to the extent feasible, in a language in which the person to be notified is proficient.
(4) Any person interested in the ward's welfare may file a motion to intervene as provided by Rule 24 of the Mississippi Rules of Civil Procedure.
Section 114. Waiver of notice. Except as otherwise provided in this act, a person may waive notice under this act in a record signed by the person or person's attorney and filed in the proceeding. However, a respondent or ward may not waive notice under this act.
Section 115. Guardian ad litem. The court at any time may appoint a guardian ad litem for an individual. If no conflict of interest exists, a guardian ad litem may be appointed to represent multiple individuals or interests. The guardian ad litem may not be the same individual as the attorney representing the respondent. The court shall state the duties of the guardian ad litem and the reasons for the appointment.
Section 116. Request for notice. (1) A person may file with the court a request for notice under this act if the person is:
(a) Not otherwise entitled to notice under Section 203, 303(c) or 403(c); and
(b) Interested in the welfare of a respondent or ward.
(2) A request under subsection (1) must include a statement showing the interest of the person making the request and the address of the person or an attorney for the person to whom notice is to be given.
(3) If the court approves a request under subsection (1), the court must give notice of the approval to the guardian or conservator, if one has been appointed, or to the respondent if no guardian or conservator has been appointed.
Section 117. Disclosure of bankruptcy or criminal history. Before accepting appointment as a guardian or conservator, a person must disclose to the court whether the person:
(a) Is or has been a debtor in a bankruptcy, insolvency, or receivership proceeding; or
(b) Has been convicted of:
(i) A felony;
(ii) A crime involving dishonesty, neglect, violence, or use of physical force; or
(iii) Other crime relevant to the functions the person would assume as guardian or conservator.
Section 118. Compensation and expenses; in general. (1) An attorney for a respondent in a proceeding under this act may be awarded reasonable compensation for services and reasonable expenses in the discretion of the court.
(2) An attorney or other person whose services resulted in an order beneficial to a ward may be awarded reasonable compensation for services and reasonable expenses in the discretion of the court.
(3) The court must approve compensation and expenses payable under this section before payment. Approval is not required before a service is provided or an expense is incurred.
(4) If the court dismisses a petition under this act and determines the petition was filed in bad faith, the court may assess any costs the court deems appropriate.
Section 119. Compensation of guardian or conservator. (1) Subject to court approval, a guardian may be awarded reasonable compensation for services as guardian and to reimbursement for room, board, clothing, and other appropriate expenses advanced for the benefit of the ward. If a conservator other than the guardian or a person affiliated with the guardian is appointed for the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator in the discretion of the court.
(2) Subject to court approval, a conservator may be awarded reasonable compensation for services and reimbursement for appropriate expenses from the property of the ward in the discretion of the court.
(3) In determining reasonable compensation for a guardian or conservator, the court shall consider:
(a) The necessity and quality of the services provided;
(b) The experience, training, professional standing, and skills of the guardian or conservator;
(c) The difficulty of the services performed, including the degree of skill and care required;
(d) The conditions and circumstances under which a service was performed, including whether the service was provided outside regular business hours or under dangerous or extraordinary conditions;
(e) The effect of the services on the ward;
(f) The extent to which the services provided were or were not consistent with the guardian's plan under Section 315 or conservator's plan under Section 419; and
(g) The fees customarily paid to a person that performs a like service in the community.
(4) A guardian or conservator need not use personal funds of the guardian or conservator for the expenses of the ward.
(5) If a ward seeks to modify or terminate the guardianship or conservatorship or remove the guardian or conservator, the court may order compensation to the guardian or conservator for time spent opposing modification, termination, or removal only to the extent the court determines the opposition was reasonably necessary to protect the interest of the ward.
Section 120. Liability of guardian or conservator for act of ward. A guardian or conservator is not personally liable to another person solely because of the guardianship or conservatorship for an act or omission of the ward.
Section 121. Petition after appointment for instruction or ratification. (1) A guardian or conservator may petition the court for instruction concerning fiduciary responsibility or ratification of a particular act related to the guardianship or conservatorship.
(2) On notice and hearing on a petition under subsection (1), the court may give an instruction and issue an appropriate order.
Section 122. Third-party acceptance of authority of guardian or conservator. (1) A person may choose to not recognize the authority of a guardian or conservator to act on behalf of a ward if:
(2) A person may refuse to recognize the authority of a guardian or conservator to act on behalf of a ward if:
(a) The guardian's or conservator's proposed action would be inconsistent with this act; or
(b) The person makes, or has actual knowledge that another person has made, a report to a government agency providing protective services to adults or children stating a good-faith belief that the ward is subject to physical or financial abuse, neglect, exploitation, or abandonment by the guardian or conservator or a person acting for or with the guardian or conservator.
(3) A person that refuses to accept the authority of a guardian or conservator in accordance with subsection (2) may report the refusal and the reason for refusal to the court. The court on receiving the report shall consider whether removal of the guardian or conservator or other action is appropriate.
(4) A guardian or conservator may petition the court to require a third party to accept a decision made by the guardian or conservator on behalf of the ward.
(2) Except as otherwise ordered by the court, a temporary substitute guardian or temporary substitute conservator appointed under this section has the powers stated in the order of appointment of the guardian or conservator. The authority of the existing guardian or conservator is suspended for as long as the temporary substitute guardian or conservator has authority.
(3) Notice of appointment of a temporary substitute guardian or temporary substitute conservator shall be given to the ward and all interested parties as directed by the court.
(4) The court may remove a temporary substitute guardian or temporary substitute conservator at any time. The temporary substitute guardian or temporary substitute conservator must make any report the court requires.
(2) If a conservator has been appointed in another state for an individual, and a petition for conservatorship for the individual is not pending in this state, the conservator appointed for the individual in the other state, after giving notice to the appointing court, may register the conservatorship in this state by filing certified copies of the order of conservatorship, letters of conservatorship, and any bond or other asset-protection arrangement required by the court as a foreign judgment in a court of a county in which property belonging to the individual is located.
(3) Upon registration under this section of a guardianship or conservatorship order from another state, the guardian or conservator may exercise in this state all powers authorized in the order except as prohibited by this act and law of this state other than this act. If the guardian or conservator is not a resident of this state, the guardian or conservator may maintain an action or proceeding in this state subject to any condition imposed by this state on an action or proceeding by a nonresident party.
(4) The court may grant any relief available under this act and law of this state other than this act to enforce an order registered under this section.
(a) Each parent of the minor, after being fully informed of the nature and consequences of guardianship, consents;
(b) All parental rights have been terminated; or
(c) There is clear and convincing evidence that no parent of the minor is willing or able to exercise the powers the court is granting the guardian.
(2) A petition under subsection (1) must comply with the requirement for an affidavit under the Uniform Child Custody Jurisdiction and Enforcement Act (Title 93, Chapter 27, Mississippi Code of 1972) and must also include:
(a) The name and address of any attorney for the parents of the minor;
(b) The reason guardianship is sought and would be in the best interest of the minor;
(c) The name and address of any proposed guardian and the reason the proposed guardian should be selected; and
(d) If the minor has property other than personal effects, a general statement of the minor's property with an estimate of its value.
(3) Notice of a hearing on a petition filed after the appointment of a guardian which seeks an order under this chapter, together with a copy of the petition, must be given to the respondent, the guardian, and any other person the court determines.
Section 203. Notice of hearing for appointment of guardian for minor. (1) If a petition is filed under Section 202, the court must schedule a hearing and the petitioner must serve notice of the date, time, and place of the hearing, together with a copy of the petition on each of the following who is not the petitioner:
(a) The minor, if the minor will be fourteen (14) years of age or older at the time of the hearing;
(b) Each parent of the minor who can be found with reasonable diligence or, if there is none, the adult nearest in kinship who can be found with reasonable diligence;
(c) Any adult with whom the minor resides;
(d) Each individual who had primary care or custody of the minor for at least sixty (60) days during the six (6) months immediately before the filing of the petition; and
(e) Any other person the court determines should receive service of notice.
(2) A petition under subsection (1) must state the name and address of an attorney representing the petitioner, if any, and must set forth under the style of the case and before the body of the petition the following language in bold or highlighted type:
"THE RELIEF SOUGHT HEREIN MAY AFFECT YOUR LEGAL RIGHTS. YOU HAVE A RIGHT TO NOTICE OF ANY HEARING ON THIS PETITION, TO ATTEND ANY SUCH HEARING, AND TO BE REPRESENTED BY AN ATTORNEY."
(3) If a petitioner is unable to serve notice under subsection (1)(a), the court may appoint a guardian ad litem for the minor.
Section 204. Attorney for minor. The court may appoint an attorney to represent a minor who is the subject of a proceeding under Section 202 if:
(a) Requested by the minor who is fourteen (14) years of age or older;
(b) Recommended by a guardian ad litem; or
(c) The court determines the minor needs representation.
Section 205. Attendance and rights at hearing. (1) The court shall require a minor who is the subject of a hearing for appointment of a guardian to attend the hearing and allow the minor to participate in the hearing unless the court determines, by clear and convincing evidence presented at the hearing or at a separate hearing, that:
(a) The minor consistently and repeatedly refused to attend the hearing after being fully informed of the right to attend and, if the minor is fourteen (14) years of age or older, the potential consequences of failing to do so;
(b) There is no practicable way for the minor to attend the hearing;
(c) The minor lacks the ability or maturity to participate meaningfully in the hearing; or
(d) Attendance would be harmful to the minor.
(2) Unless excused by the court for good cause shown, the person proposed to be appointed as guardian for a minor shall attend a hearing for appointment of a guardian.
(3) Each parent of a minor who is the subject of a hearing for appointment of a guardian has the right to attend the hearing.
Section 206. Order on appointment; limited guardianship for minor. (1) After a hearing under this article, the court may appoint a guardian for a minor, dismiss the proceeding, or take other appropriate action consistent with this act or law of this state other than this act.
(2) In appointing a guardian under subsection (1), the following apply:
(a) The court shall appoint a person nominated as guardian by a parent of the minor in a will or other record unless the court finds the appointment is contrary to the best interest of the minor.
(b) If multiple parents have nominated different persons to serve as guardian, the court shall appoint the nominee whose appointment is in the best interest of the minor, unless the court finds that appointment of none of the nominees is in the best interest of the minor.
(c) If a guardian is not appointed under paragraph (a) or (b), the court shall appoint the person nominated by the minor if the minor is fourteen (14) years of age or older unless the court finds that appointment is contrary to the best interest of the minor. In that case, the court shall appoint as guardian a person whose appointment is in the best interest of the minor.
(3) In the interest of maintaining or encouraging involvement by a minor's parent in the minor's life, developing self-reliance of the minor, or for other good cause, the court, at the time of appointment of a guardian for the minor or later, on its own or on motion of the minor or other interested person, may create a limited guardianship by limiting the powers otherwise granted by this article to the guardian. Following the same procedure, the court may grant additional powers or withdraw powers previously granted.
(4) The court, as part of an order appointing a guardian for a minor, shall state rights retained by any parent of the minor, which may include contact or visitation with the minor, decision-making regarding the minor's health care, education, or other matter, or access to a record regarding the minor.
(5) An order granting a guardianship for a minor must state that each parent of the minor is entitled to notice that:
(a) The location of the minor's residency has changed;
(b) The court has modified or limited the powers of the guardian; or
(c) The court has removed the guardian.
Section 207. Emergency guardian for minor. (1) On a petition by a person interested in a minor's welfare or a petition filed under Section 202, the court may appoint an emergency guardian for the minor if the court finds:
(a) Appointment of an emergency guardian is likely to prevent substantial harm to the minor's health, safety, or welfare; and
(b) No other person appears to have authority and willingness to act in the circumstances.
(2) The duration of authority of an emergency guardian for a minor may not exceed sixty (60) days, and the emergency guardian may exercise only the powers specified in the order of appointment. The emergency guardian's authority may be extended one (1) time for not more than sixty (60) days if the court finds that the conditions for appointment of an emergency guardian in subsection (1) continue.
(3) Except as otherwise provided in subsection (4), reasonable notice of the date, time, and place of a hearing on a petition for appointment of an emergency guardian for a minor must be given to:
(a) The minor, if the minor is fourteen (14) years of age or older;
(b) Any attorney appointed under Section 204;
(c) Each parent of the minor;
(d) Any person, other than a parent, having care or custody of the minor; and
(e) Any other person the court determines.
(4) The court may appoint an emergency guardian for a minor under subsection (3) without notice or a hearing only if the court finds from an affidavit or testimony that the minor's health, safety, or welfare will be substantially harmed before a hearing after notice of the appointment could be held. If the court appoints an emergency guardian to an unrepresented minor or the attorney for a represented minor without notice, notice of the appointment must be given not later than forty-eight (48) hours after the appointment to the individuals listed in subsection (3). The court must hold a hearing on continuation of a guardianship within five (5) days of any objection or other contest. Not later than five (5) days after the appointment, the court must hold a hearing on the appropriateness of the appointment.
(5) Appointment of an emergency guardian under this section, with or without notice, is not a determination that a basis exists for appointment of a guardian under Section 201.
(6) The court may remove an emergency guardian appointed under this section at any time. The emergency guardian must
make any report the court requires.
Section 208. Duties of guardian for minor. (1) A guardian for a minor is a fiduciary. Except as otherwise limited by the court, a guardian for a minor has the duties and responsibilities of a parent regarding the minor's support, care, education, health, safety, and welfare. A guardian must act in the minor's best interest and exercise reasonable care, diligence, and prudence.
(2) A guardian for a minor must:
(a) Become personally acquainted with the minor and maintain sufficient contact with the minor to know and report to the court the minor's abilities, limitations, needs, opportunities, and physical and mental health;
(b) Take reasonable care of the minor's personal effects and bring a proceeding for a conservatorship if necessary to protect other property of the minor;
(c) Expend funds of the minor that have been received by the guardian for the minor's current needs for support, care, education, health, safety, and welfare;
(d) Conserve any funds of the minor not expended under paragraph (c) for the minor's future needs, but if a conservator is appointed for the minor, pay the funds as directed by the court to the conservator to be conserved for the minor's future needs;
(e) Report the condition of the minor and account for funds and other property of the minor in the guardian's possession or subject to the guardian's control, as required by court rule or ordered by the court on application of a person interested in the minor's welfare;
(f) Inform the court of any change in the minor's dwelling or address; and
(g) In determining what is in the minor's best interest, take into account the minor's preferences to the extent actually known or reasonably ascertainable by the guardian.
Section 209. Powers of guardian for minor. (1) Except as otherwise limited by court order, a guardian of a minor has the powers a parent otherwise would have regarding the minor's support, care, education, health, safety, and welfare.
(2) Except as otherwise limited by court order, a guardian for a minor may:
(a) Apply for and receive funds up to the amount set forth in Section 431 and benefits otherwise payable for the support of the minor to the minor's parent, guardian, or custodian under a statutory system of benefits or insurance or any private contract, devise, trust, conservatorship, or custodianship.
(b) Unless inconsistent with a court order entitled to recognition in this state, take custody of the minor and establish the minor's place of dwelling and, on authorization of the court, establish or move the minor's dwelling outside this state.
(c) If the minor is not subject to conservatorship, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the minor or make a payment for the benefit of the minor;
(d) Consent to health or other care, treatment, or service for the minor; or
(e) To the extent reasonable, delegate to the minor responsibility for a decision affecting the minor's well-being.
(3) The court may authorize a guardian for a minor to consent to the adoption of the minor if the minor does not have a parent.
(4) A guardian for a minor may consent to the marriage of the minor if authorized by the court.
Section 210. Removal of guardian for minor; termination of guardianship; appointment of successor. (1) Guardianship for a minor under this act terminates:
(a) On the minor's death, adoption, emancipation, attainment of majority, or on a date set by the court; or
(b) When the court finds that the standard in Section 201 for appointment of a guardian is not satisfied, unless the court finds that:
(i) Termination of the guardianship would be harmful to the minor; and
(ii) The minor's interest in the continuation of the guardianship outweighs the interest of any parent of the minor in restoration of the parent's right to make decisions for the minor.
(2) A ward or any party may petition the court to terminate the guardianship, modify the guardianship, remove the guardian and appoint a successor guardian.
(3) A petitioner under subsection (2) must give notice of the hearing on the petition to the minor, if the minor is fourteen (14) years of age or older and is not the petitioner, and to the guardian, each parent of the minor, and any other person the court determines.
(4) Not later than thirty (30) days after appointment of a successor guardian for a minor, notice must be given of the appointment to the ward, if the minor is fourteen (14) years of age or older, to each parent of the minor, and to any other person the court determines.
(5) When terminating a guardianship for a minor under this section, the court may issue an order providing for transitional arrangements that will assist the minor with a transition of custody and that is in the best interest of the minor.
(6) A guardian for a minor who is removed must cooperate with a successor guardian to facilitate transition of the guardian's responsibilities and protect the best interest of the minor.
Section 301. Basis for appointment of guardian for adult. (1) Upon petition of an interested party, and after notice and hearing, the court may appoint a guardian for an adult when the respondent lacks the ability to meet essential requirements for physical health, safety or self-care because:
(a) The adult is unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services or technological assistance; or
(b) The adult is found to be a person with mental illness or a person with an intellectual disability as defined in Section 41-21-61 who is also incapable of taking care of his or her person.
(2) The court shall grant to a guardian appointed under subsection (1) only those powers necessitated by the limitations and demonstrated needs of the ward and must enter orders that will encourage the development of the ward's maximum self-determination and independence. The court must consider any less restrictive alternative that would meet the needs of the ward.
Section 302. Petition for appointment of guardian for adult.
(1) A person interested in an adult's welfare, including the adult for whom the order is sought, may petition for appointment of a guardian for the adult.
(2) The proceeding may be instituted by any relative or friend of the adult or any other interested party by filing a sworn petition in the chancery court of the county of the residence of the adult, setting forth that the adult is a person with mental illness or a person with an intellectual disability who is incapable of taking care of the adult's person.
"THE RELIEF SOUGHT HEREIN MAY AFFECT YOUR LEGAL RIGHTS. YOU HAVE A RIGHT TO NOTICE OF ANY HEARING ON THIS PETITION, TO ATTEND ANY SUCH HEARING, AND TO BE REPRESENTED BY AN ATTORNEY."
Section 303. Notice of hearing for appointment of guardian for adult. (1) On receipt of a petition under Section 302 for appointment of a guardian for a respondent who is an adult, the clerk of the court shall set a date, time, and place for hearing the petition and shall cause not less than five (5) days' notice thereof to be given to the adult for whom the guardian is to be appointed, except that the court may, for good cause shown, direct that a shorter notice be given.
(2) In a proceeding on a petition under Section 302, notice of the hearing must also be given to any of the persons required to be listed in the petition under subsection (3) and any other person the court determines is entitled to notice. Failure to give notice does not preclude the court from appointing a guardian.
(3) Unless the court finds that the adult for whom the guardian is to be appointed is competent and joins in the petition, the notice shall also be given to:
(a) Any persons claiming to be legal custodians of the respondent or co-owners or signatories of property owned by the respondent;
(b) Any conservator appointed to the respondent; and
(c) The following persons, listed in order of preference, so that personal service is had on the person for whom the guardian is to be appointed and on at least one (1) relative who resides in Mississippi, other than the petitioner:
(i) Each of the spouse, children, parents and siblings of the adult for whom the guardian is to be appointed, but if none of those can be found, then to:
(ii) One (1) adult relative of the person for whom the guardian is to be appointed who is not the petitioner and who resides in Mississippi if that relative is within the third degree of kinship. If no relative within the third degree of kinship to the person for whom the guardian is to be appointed is found residing in the State of Mississippi, the court shall either designate some other appropriate person to receive the notice or appoint a guardian ad litem to receive notice.
(4) If the person for whom the guardian is to be appointed is entitled to any benefit, estate or income paid or payable by or through the Veterans' Administration of the United States government, such administration must also be given notice.
(5) Notice of a hearing on a petition seeking an order under this article that is filed after the appointment of a guardian, together with a copy of the petition, must be given to the respondent, the guardian, and any other person the court determines.
Section 304. Appointment of guardian ad litem. The court may appoint a guardian ad litem to any respondent and allow suitable compensation payable out of the estate of the respondent, but the appointment shall not be made except when the court considers it necessary for the protection of the interest of the respondent; a judgment of any court is not void or erroneous for failure to have a guardian ad litem.
Section 305. Professional evaluation. (1) The chancery court must conduct a hearing to determine whether a guardian is needed for the respondent. Before the hearing, the court, in its discretion, may appoint a guardian ad litem to look after the interest of the person in question; the guardian ad litem must be present at the hearing and present the interests of the respondent for whose person a guardian is to be appointed.
(2) The chancery judge shall be the judge of the number and character of the witnesses and proof to be presented, except that the proof must include certificates made after a personal examination of the respondent by the following professionals, each of whom shall make in writing a certificate of the result of that examination to be filed with the clerk of the court and become a part of the record of the case
(a) Two (2) licensed physicians; or
(b) One (1) licensed physician and either one (1) licensed psychologist, nurse practitioner, or physician's assistant.
(3) The personal examination may occur face-to-face or via telemedicine, but any telemedicine examination must be made using an audio-visual connection by a physician licensed in this state and as defined in Section 83-9-351. A nurse practitioner or physician assistant conducting an examination shall not also be in a collaborative or supervisory relationship, as the law may otherwise require, with the physician conducting the examination. A professional conducting an examination under this section may also be called to testify at the hearing.
Section 306. Rights at hearing. (1) At a hearing held under Section 303, the respondent may:
(a) Present evidence and subpoena witnesses and documents;
(b) Examine witnesses; and
(c) Otherwise participate in the hearing.
(2) Unless excused by the court for good cause shown, a proposed guardian must attend a hearing under Section 303.
(3) A hearing under Section 303 must be closed upon request of the respondent and a showing of good cause.
(4) Any person may request to participate in a hearing under Section 303. The court may grant the request, with or without a hearing, on determining that the best interest of the respondent will be served. The court may impose appropriate conditions on the person's participation.
Section 307. Confidentiality of records. (1) An adult subject to a proceeding for a guardianship, an attorney designated by the adult, and a person entitled to notice either under Section 309(4) or a court order may access court records of the proceeding and resulting guardianship, including the guardian's plan under Section 315 and guardian's well-being report under Section 316. A person not otherwise entitled to access court records under this subsection may petition the court for access to court records of the guardianship, including the guardian's report and plan, for good cause. The court shall grant access if access is in the best interest of the respondent or ward or furthers the public interest and does not endanger the welfare or financial interests of the respondent or ward.
(2) A report under Section 304 of a guardian ad litem or a professional evaluation under Section 305 may be considered confidential and may be sealed on filing when determined necessary by the court. If the court finds the file should be sealed, the file will remain available to:
(a) The court;
(b) The individual who is the subject of the report or evaluation, without limitation as to use;
(c) The petitioner, guardian ad litem, and petitioner's and respondent's attorneys, for purposes of the proceeding;
(d) Unless the court orders otherwise, an agent appointed under a power of attorney for health care or power of attorney for finances in which the respondent is the principal; and
(e) Any other person if it is in the public interest or for a purpose the court orders for good cause.
Section 308. Who may be guardian for adult. (1) Appointment of a guardian for an adult will be at the discretion of the court and in the best interest of the respondent. If two (2) or more persons have requested responsibility as guardian for the adult, the court shall select as guardian the person the court considers best qualified. In determining the best qualified person, the court shall consider the person's relationship with the respondent, the person's skills, the expressed wishes of the respondent, including any designation made in a will, durable power of attorney, or health-care directive, the extent to which the person and the respondent have similar values and preferences, and the likelihood the person will be able to perform the duties of a guardian successfully. The court, acting in the best interest of the respondent, may decline to appoint as guardian a person requesting such an appointment.
(2) If a qualified guardian under this section cannot be determined, or if other circumstances arise where the court determines that a guardian must instead be appointed, the court, at its discretion, may appoint the chancery court clerk for the county in which the proceedings were filed, to serve as the respondent's guardian. The chancery court clerk shall serve in the capacity ordered by the court unless a conflict of interest arises or the clerk presents circumstances where the court determines the clerk's recusal from appointment is permitted.
(3) A person that provides paid services to the respondent, or an individual who is employed by a person who provides paid services to the respondent or is the spouse, parent, or child of an individual who provides or is employed to provide paid services to the respondent, may not be appointed as guardian unless:
(a) The individual is related to the respondent by blood, marriage, or adoption; or
(b) The court finds by clear and convincing evidence that the person is the best qualified person available for appointment and the appointment is in the best interest of the respondent.
(4) An owner, operator, or employee of a long-term-care institution at which the respondent is receiving care may not be appointed as guardian unless the owner, operator, or employee is related to the respondent by blood, marriage, or adoption.
Section 309. Order on appointment of guardian. (1) A court order appointing a guardian for an adult must:
(a) Include a specific finding that clear and convincing evidence established that the identified needs of the respondent cannot be met by a less restrictive alternative, including use of appropriate supportive services and technological assistance; and
(b) Include a specific finding that clear and convincing evidence established the respondent was given proper notice of the hearing on the petition;
(2) A court order establishing a full guardianship for an adult must state the basis for granting a full guardianship and include specific findings that support the conclusion that a limited guardianship would not meet the functional needs of the ward.
(3) A court order establishing a limited guardianship for an adult must state the specific powers granted to the guardian.
(4) The court, as part of an order establishing a guardianship for an adult, must identify and include the contact information for any person that subsequently is entitled to:
(a) Notice of the rights of the adult under Section 310(b);
(b) Notice of a change in the primary dwelling of the adult;
(c) Notice that the guardian has delegated:
(i) The power to manage the care of the adult;
(ii) The power to make decisions about where the adult lives;
(iii) The power to make major medical decisions on behalf of the adult;
(iv) A power that requires court approval under Section 314; or
(v) Substantially all powers of the guardian;
(d) A copy of the guardian's plan under Section 315 and the guardian's well-being report under Section 316;
(e) Access to court records relating to the guardianship;
(f) Notice of the death or significant change in the condition of the adult;
(g) Notice that the court has limited or modified the powers of the guardian; and
(h) Notice of the removal of the guardian.
(5) A spouse and adult children of a ward are entitled to notice under Section 303(3) unless the court determines notice would be contrary to the preferences or prior directions of the ward or not in the best interest of the ward.
(6) (a) If the chancellor finds from the evidence that the adult is incapable of taking care of his person, the chancellor shall appoint a guardian over the person.
(b) The costs and expenses of the proceedings shall be paid out of the estate of the person if a guardian is appointed. If a guardian is appointed and the adult has no estate, or if no guardian is appointed, then the costs and expenses must be paid by the person instituting the proceedings.
Section 310. Notice of order of appointment; rights. (1) A guardian appointed under Section 309 shall give the ward and all other persons given notice under Section 309(5) a copy of the order of appointment, together with notice of the right to request termination or modification. The order and notice must be given not later than fourteen (14) days after the appointment.
(2) Not later than fourteen (14) days after appointment of a guardian under Section 309, the guardian shall request from the court a statement of the rights of the ward and shall give the statement to the ward and any other person entitled to notice under Section 303(3) or a court order. The statement must notify the ward of the right to:
(a) Seek termination or modification of the guardianship, or removal of the guardian, and choose an attorney to represent the adult in these matters;
(b) Be involved in decisions affecting the adult, including decisions about the adult's care, dwelling, activities, or social interactions, to the extent reasonably feasible;
(c) Be involved in health-care decision-making to the extent reasonably feasible and supported in understanding the risks and benefits of health-care options to the extent reasonably feasible;
(d) Be notified at least fourteen (14) days before a change in the adult's primary dwelling or permanent move to a nursing home, mental-health facility, or other facility that places restrictions on the individual's ability to leave or have visitors, unless the change or move is proposed in the guardian's plan under Section 315 or authorized by the court by specific order;
(e) Object to a change or move described in paragraph (d) and the process for objecting;
(f) Communicate, visit, or interact with others, including receiving visitors, and making or receiving telephone calls, personal mail, or electronic communications, including through social media, unless:
(i) The guardian has been authorized by the court by specific order to restrict communications, visits, or interactions;
(ii) A protective order is in effect that limits contact between the adult and a person; or
(iii) The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult, and the restriction is:
1. For a period of not more than seven (7) business days if the person has a family or pre-existing social relationship with the adult; or
2. For a period of not more than sixty (60) days if the person does not have a family or pre-existing social relationship with the adult;
(g) Receive a copy of the guardian's plan under Section 315 and the guardian's well-being report under Section 316; and
(h) Object to the guardian's plan or report.
Section 311. Emergency guardian for adult. (1) On a petition by a person interested in an adult's welfare or a petition filed under Section 302, the court may appoint an emergency guardian for the adult if the court finds:
(a) Appointment of an emergency guardian is likely to prevent substantial harm to the adult's physical health, safety, or welfare;
(b) No other person appears to have authority and willingness to act in the circumstances; and
(c) There is reason to believe that a basis for appointment of a guardian under Section 301 exists.
(2) The duration of authority of an emergency guardian for an adult may not exceed sixty (60) days, and the emergency guardian may exercise only the powers specified in the order of appointment. The emergency guardian's authority may be extended once for not more than sixty (60) days if the court finds that the conditions for appointment of an emergency guardian in subsection (1) continue.
(3) Except as otherwise provided in subsection (4), reasonable notice of the date, time, and place of a hearing on the petition must be given to the respondent, the respondent's attorney, and any other person the court determines.
(4) The court may appoint an emergency guardian for an adult without notice to the adult and any attorney for the adult only if the court finds from an affidavit or testimony that the respondent's physical health, safety, or welfare will be substantially harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency guardian without giving notice under subsection (3), the court must give notice of the appointment not later than forty-eight (48) hours after the appointment to:
(a) The respondent;
(b) The respondent's attorney;
(c) Any other person the court determines; and
(d) Hold a hearing on the appropriateness of the appointment not later than five (5) days after the appointment.
(5) Appointment of an emergency guardian under this section is not a final determination that a basis exists for appointment of a guardian under Section 301.
(6) The court may remove an emergency guardian appointed under this section at any time. The emergency guardian shall make any report the court requires.
Section 312. Duties of guardian for adult. (1) A guardian for an adult is a fiduciary. Except as otherwise limited by the court, a guardian for an adult shall make decisions regarding the support, care, education, health, and welfare of the ward to the extent necessitated by the adult's limitations.
(2) A guardian for an adult promotes the self-determination of the adult and, to the extent reasonably feasible, encourages the adult to participate in decisions, act on the adult's own behalf, and develop or regain the capacity to manage the adult's personal affairs. In furtherance of this duty, the guardian may:
(a) Become personally acquainted with the adult and maintain sufficient contact with the adult through regular visitation and other means, and to know the adult's abilities, limitations, needs, opportunities, and physical and mental health;
(b) To the extent reasonably feasible, identify the values and preferences of the adult and involve the adult in decisions affecting the adult, including decisions about the adult's care, dwelling, activities, or social interactions; and
(c) Make reasonable efforts to identify and facilitate supportive relationships and services for the adult.
(3) A guardian for an adult at all times shall exercise reasonable care, diligence, and prudence when acting on behalf of or making decisions for the adult. In furtherance of this duty, the guardian shall:
(a) Take reasonable care of the personal effects, pets, and service or support animals of the adult and bring a proceeding for a conservatorship if necessary to protect the adult's property;
(b) Expend funds and other property of the adult received by the guardian for the adult's current needs for support, care, education, health, and welfare;
(c) Conserve any funds and other property of the adult not expended under paragraph (b) for the adult's future needs, but if a conservator has been appointed for the adult, pay the funds and other property at least quarterly to the conservator to be conserved for the adult's future needs; and
(d) Monitor the quality of services, including long-term care services, provided to the adult.
(4) In making a decision for a ward, the guardian shall make the decision the guardian reasonably believes the adult would make if the adult were able unless doing so would unreasonably harm or endanger the welfare or personal or financial interests of the adult. To determine the decision the ward would make if able, the guardian shall consider the adult's previous or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the guardian.
(5) If a guardian for an adult cannot make a decision under subsection (4) because the guardian does not know and cannot reasonably determine the decision the adult probably would make if able, or the guardian reasonably believes the decision the adult would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult, the guardian shall act in accordance with the best interest of the adult. In determining the best interest of the adult, the guardian may consider:
(a) Information received from professionals and persons that demonstrate sufficient interest in the welfare of the adult;
(b) Other information the guardian believes the adult would have considered if the adult were able to act; and
(c) Other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.
(6) A guardian for an adult immediately must notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously removed.
Section 313. Powers of guardian for adult. (1) Except as limited by court order, a guardian for an adult may:
(a) Apply for and receive funds and benefits for the support of the adult, unless a conservator is appointed for the adult and the application or receipt is within the powers of the conservator;
(b) Unless inconsistent with a court order, establish the adult's place of dwelling;
(c) Consent to health or other care, treatment, or service for the adult;
(d) If a conservator for the adult has not been appointed, commence a proceeding, including an administrative proceeding, or take other appropriate action to compel a person to support the adult or pay funds for the adult's benefit;
(e) To the extent reasonable, delegate to the adult responsibility for a decision affecting the adult's well-being; and
(f) Receive personally identifiable health-care information regarding the adult.
(2) In exercising a guardian's power under subsection (1)(b) to establish the adult's place of dwelling, the guardian must:
(a) Select a residential setting the guardian believes the adult would select if the adult were able, in accordance with the decision-making standard in Section 312(4) and (5). If the guardian does not know and cannot reasonably determine what setting the ward likely would choose if able, or if the guardian reasonably believes the decision the adult would make would unreasonably harm or endanger the welfare or personal or financial interests of the adult, the guardian shall choose in accordance with Section 312(5) a residential setting that is consistent with the adult's best interest;
(b) In selecting among residential settings, give priority to a residential setting in a location that will allow the adult to interact with persons important to the adult and meet the adult's needs in the least restrictive manner reasonably feasible unless to do so would be inconsistent with the decision-making standard in Section 312(4) and (5);
(c) Establish or move the permanent place of dwelling of the adult to a nursing home, mental-health facility, or other facility that places restrictions on the adult's ability to leave or have visitors only if:
(i) The establishment or move is in the guardian's plan under Section 315;
(ii) The court authorizes the establishment or move; or
(iii) The guardian gives notice of the establishment or move at least fourteen (14) days before the establishment or move to the adult and all persons entitled to notice under Section 309(4) or court order, and no objection is filed;
(d) Establish or move the place of dwelling of the adult outside this state only if consistent with the guardian's plan and authorized by the court by specific order; and
(e) Take action that would result in the sale of or surrender of the lease to the primary dwelling of the adult only if:
(i) The action is specifically included in the guardian's plan under Section 315;
(ii) The court authorizes the action by specific order; or
(iii) Notice of the action was given at least fourteen (14) days before the action to the adult and all persons entitled to the notice under Section 309(4) or court order and no objection has been filed;
(f) Notify the court that the adult's dwelling or permanent residence has become so damaged by fire, flood, or other emergency circumstance that the guardian has had to temporarily or permanently relocate the adult to another residential setting.
(3) In exercising a guardian's power under subsection (1)(c) to make health-care decisions, the guardian shall:
(a) Involve the adult in decision-making to the extent reasonably feasible, including, when practicable, by encouraging and supporting the adult in understanding the risks and benefits of health-care options;
(b) Defer to a decision by an agent under an advanced healthcare directive executed by the adult and cooperate to the extent feasible with the agent making the decision; and
(c) Take into account:
(i) The risks and benefits of treatment options; and
(ii) The current and previous wishes and values of the adult, if known or reasonably ascertainable by the guardian.
Section 314. Special limitations on guardian's power. (1) Unless authorized by the court by specific order, a guardian for an adult does not have the power to revoke or amend an advanced health-care directive or power of attorney for finances executed by the adult. If an advanced health-care directive is in effect, unless there is a court order to the contrary, a health-care decision of an agent takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible. If a power of attorney for finances is in effect, unless there is a court order to the contrary, a decision by the agent which the agent is authorized to make under the power of attorney for finances takes precedence over that of the guardian and the guardian shall cooperate with the agent to the extent feasible.
(2) A guardian for an adult may not initiate the commitment of the adult to a mental health facility except in accordance with the state's procedure for involuntary civil commitment.
(3) A guardian for an adult may not restrict the ability of the adult to communicate, visit, or interact with others, including receiving visitors and making or receiving telephone calls, personal mail, or electronic communications, including through social media, or participating in social activities, unless:
(a) Authorized by the court by specific order;
(b) A protective order is in effect that limits contact between the adult and a person; or
(c) The guardian has good cause to believe restriction is necessary because interaction with a specified person poses a risk of significant physical, psychological, or financial harm to the adult and the restriction is:
(i) For a period of not more than seven (7) business days if the person has a family or pre-existing social relationship with the adult; or
(ii) For a period of not more than sixty (60) days if the person does not have a family or pre-existing social relationship with the adult.
Section 315. Guardian's plan. (1) If required by the court, a guardian must file with the court a plan for the care of the adult no later than ninety (90) days after the court's order of appointment or order to file a plan. If a plan is required and there is a significant change in circumstances, or if the guardian seeks to deviate significantly from the guardian's plan, a guardian must file with the court a revised plan no later than ninety (90) days after the change in circumstances or decision to deviate from the plan. Every plan must be based on the needs of the adult and take into account the best interest of the adult as well as the adult's preferences, values, and prior directions, to the extent known to or reasonably ascertainable by the guardian. Along with other items determined necessary by the court, the guardian's plan shall include:
(a) The living arrangement, services, and supports the guardian expects to arrange, facilitate, or continue for the adult;
(b) Social and educational activities the guardian expects to facilitate on behalf of the adult;
(c) Any person with whom the adult has a close personal relationship or relationship involving regular visitation and any plan the guardian has for facilitating visits with the person;
(d) The anticipated nature and frequency of the guardian's visits and communication with the adult;
(e) Goals for the adult, including any goal related to the restoration of the adult's rights, and how the guardian anticipates achieving the goals;
(f) Whether the adult has an existing plan and, if so, whether the guardian's plan is consistent with the adult's plan; and
(g) A statement or list of the amount the guardian proposes to charge for each service the guardian anticipates providing to the adult.
(2) A guardian must give reasonable notice of the filing of the guardian's plan under subsection (1), and a copy of the plan, to the adult ward, the adult ward's spouse, parents, children, and any other person the court determines. The notice must include a statement of the right to object to the plan and be given not later than fourteen (14) days after the filing.
(3) After the guardian's plan filed under this section is approved by the court, the guardian must provide a copy of the plan to the adult ward, the adult ward's spouse, parents, children, and any other person the court determines.
Section 316. Guardian's wellbeing report; monitoring of guardianship. (1) If there is a significant change in circumstances, or if the guardian seeks to deviate significantly from the guardian's plan, a guardian must file with the court a report in a record regarding the condition of the adult and accounting for funds and other property in the guardian's possession or subject to the guardian's control within ninety (90) days after being so ordered by the court.
(2) A report under subsection (1) must state:
(a) The mental, physical, and social condition of the adult;
(b) The living arrangements of the adult during the reporting period;
(c) A summary of any technological assistance, medical services, educational and vocational services, and other supports and services provided to the adult and the guardian's opinion as to the adequacy of the adult's care;
(d) A summary of the guardian's visits with the adult, including the dates of the visits;
(e) Action taken on behalf of the adult;
(f) The extent to which the adult has participated in decision-making;
(g) If the adult is living in a mental health facility or living in a facility that provides the adult with health-care or other personal services, whether the guardian considers the facility's current plan for support, care, treatment, or habilitation consistent with the adult's preferences, values, prior directions, and best interest;
(h) Any business relation the guardian has with a person the guardian has paid or that has benefited from the property of the adult;
(i) A copy of the guardian's most recently approved plan under Section 315 and a statement whether the guardian has deviated from the plan and, if so, how the guardian has deviated and why;
(j) Plans for future care and support of the adult;
(k) A recommendation as to the need for continued guardianship and any recommended change in the scope of the guardianship, when determined applicable by the court;
(l) Whether any co-guardian or successor guardian appointed to serve when a designated event occurs is alive and able to serve;
(m) Photographs of the adult ward and the adult ward's living conditions, as required by the court at its discretion; and
(n) Any amounts requested for reimbursement by the guardian of fees related to the administration of the guardianship or legal fees incurred for matters related to the guardianship.
(3) The court may appoint a guardian ad litem to review a report submitted under this section or any guardian's plan submitted under Section 315, interview the guardian or ward, or investigate any other matter involving the guardianship.
(4) Notice of the filing under this section of a guardian's well-being report, together with a copy of the report, must be given to the adult ward, the adult ward's spouse, parents, children, and any other person the court determines. The notice and report must be delivered not later than fourteen (14) days after the filing.
(5) The court must establish procedures for monitoring a report submitted under this section and review each report at least annually to determine whether:
(a) The report provides sufficient information to establish if the guardian has complied with the guardian's duties;
(b) The guardianship should continue; and
(c) The guardian's requested fees, if any, should be approved.
(6) If the court determines there is reason to believe a guardian for an adult has not complied with the guardian's duties or the guardianship should be modified or terminated, the court:
(a) Shall notify the adult ward, the adult ward's spouse, parents, children, and persons entitled to notice under Section 309(4) or a court order;
(b) May appoint a guardian ad litem to interview the adult or guardian or investigate any matter involving the guardianship; and
(c) May hold a hearing to consider removal of the guardian, termination of the guardianship, or a change in the powers granted to the guardian or terms of the guardianship.
(7) A guardian for an adult may petition the court for approval of a report filed under this section. The court after review may approve the report. If the court approves the report, there is a rebuttable presumption the report is accurate as to a matter adequately disclosed in the report.
Section 317. Removal of guardian for adult; appointment of successor. (1) Upon petition and for good cause shown, the court may hold a hearing to consider whether to remove a guardian for an adult for failure to perform the guardian's duties and appoint a successor guardian to assume the duties of guardian.
(2) Notice of a petition under this section must be given to the ward, the guardian, and any other person the court determines.
(3) A ward who seeks to remove the guardian and have a successor guardian appointed has the right to choose an attorney for representation in this matter. The court shall award reasonable attorney's fees to the attorney for the adult as provided in Section 118.
(4) Not later than ten (10) days after appointing a successor guardian, the court shall give notice of the appointment to the adult ward, the adult ward's spouse, parents, children, and any person entitled to notice under a court order.
Section 318. Termination or modification of guardianship for adult. (1) Upon petition and for good cause shown, the court may hold a hearing to consider whether termination of the guardianship exists on the ground that a basis for appointment under Section 301 does not exist or termination would be in the best interest of the adult or for other good cause; or modification of the guardianship exists on the ground that the extent of protection or assistance granted is not appropriate or for other good cause.
(2) Notice of a petition under this section must be given to the ward, the guardian, and any other person the court determines.
(3) On presentation of prima facie evidence for termination of a guardianship for an adult, the court shall order termination unless it is proven that a basis for appointment of a guardian under Section 301 exists.
(4) The court shall modify the powers granted to a guardian for an adult if the powers are excessive or inadequate due to a change in the abilities or limitations of the adult, the adult's supports, or other circumstances.
(5) Unless the court otherwise orders for good cause shown, before terminating or modifying a guardianship for an adult, the court shall follow the same procedures to safeguard the rights of the adult which apply to a petition for guardianship.
(6) A ward who seeks to terminate or modify the terms of the guardianship has the right to choose an attorney for representation in the matter. The court shall award reasonable attorney's fees to the attorney for the adult as provided in Section 118.
Section 401. Basis for appointment of conservator. (1) For a minor. On petition of the chancellor or clerk of the chancery court, a relative or any other interested party, and after notice and hearing, the court may appoint a conservator for the property or financial affairs of a minor if the court finds by clear and convincing evidence that appointment of a conservator is in the minor's best interest, and:
(a) If the minor has a parent, the court gives weight to any recommendation of the parent whether an appointment is in the minor's best interest; and
(b) Either:
(i) The minor owns funds or other property requiring management or protection that otherwise cannot be provided;
(ii) The minor has or may have financial affairs that may be put at unreasonable risk or hindered because of the minor's age; or
(iii) Appointment is necessary or desirable to obtain or provide funds or other property needed for the support, care, education, health, or welfare of the minor.
(2) For an adult. On petition of the chancellor or clerk of the chancery court, a relative or friend of the person, or any other interested party, and after notice and hearing, the court may appoint a conservator for the property or financial affairs of an adult if the court finds by clear and convincing evidence that:
(a) The adult is unable to manage property or financial affairs because:
(i) Of a limitation in the adult's ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate supportive services or technological assistance;
(ii) The adult is missing, detained, incarcerated, or unable to return to the United States;
(b) Appointment is necessary to:
(i) Avoid harm to the adult or significant dissipation of the property of the adult; or
(ii) Obtain or provide funds or other property needed for the support, care, education, health, or welfare of the adult or of an individual entitled to the adult's support; and
(c) The respondent's identified needs cannot be met by a less restrictive alternative.
(3) The court shall grant a conservator only those powers necessitated by demonstrated limitations and needs of the respondent and issue orders that will encourage development of the respondent's maximum self-determination and independence. 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 402. Petition for appointment of conservator. (1) A person interested in the estate, financial affairs, or welfare of the individual, including a person that would be adversely affected by lack of effective management of property or financial affairs of the individual, may petition for the appointment of a conservator for the individual.
(2) The proceeding may be instituted by any relative or friend of the individual or any other interested party by filing a sworn petition in the chancery court of the residence of the individual setting forth that the individual is alleged to be in need of a conservatorship.
(2) The petition must state the name and address of an attorney representing the petitioner, if any, and must set forth under the style of the case and before the body of the petition the following language in bold or highlighted type:
"THE RELIEF SOUGHT IN THIS PETITION MAY AFFECT YOUR LEGAL RIGHTS. YOU HAVE A RIGHT TO NOTICE OF ANY HEARING ON THIS PETITION, TO ATTEND ANY HEARING, AND TO BE REPRESENTED BY AN ATTORNEY."
Section 403. Notice and hearing for appointment of conservator. (1) On receipt of a petition under Section 402 for appointment of a conservator for a respondent, the court must set a date, time, and place for a hearing on the petition and shall cause not less than five (5) days' notice thereof to be given to the person for whom the conservator is to be appointed, except that the court may, for good cause shown, direct that a shorter notice be given.
(2) In a proceeding on a petition under Section 402, notice of the hearing also must be given to any of the persons required to be listed in the petition under Section 403(3) and any other person interested in the respondent's welfare the court determines. Failure to give notice under this subsection does not preclude the court from appointing a conservator.
(3) Unless the court finds that the adult for whom the conservator is to be appointed is competent and joins in the petition, the notice shall also be given to:
(a) Any persons claiming to be legal custodians of the respondent or co-owners or signatories of property owned by the respondent;
(b) The following persons, listed in order of preference, so that personal service is had on the person for whom the conservator is to be appointed and on at least one (1) relative who resides in Mississippi, other than the petitioner:
(i) Each of the spouse, children, parents and siblings of the adult for whom the conservator is to be appointed, but if none of those can be found, then to:
(ii) One (1) adult relative of the person for whom the conservator is to be appointed who is not the petitioner and who resides in Mississippi if that relative is within the third degree of kinship. If no relative within the third degree of kinship to the person for whom the conservator is to be appointed is found residing in the State of Mississippi, the court must either designate some other appropriate person to receive the notice or appoint a guardian ad litem to receive notice.
(4) If the person for whom the conservator is to be appointed is entitled to any benefit, estate or income paid or payable by or through the Veterans' Administration of the United States government, such administration shall also be given notice.
(5) Notice of a hearing on a petition seeking an order under this chapter that is filed after the appointment of a conservator, together with a copy of the petition, must be given to the respondent, the conservator, and any other person the court determines.
Section 404. Order to preserve or apply property while proceeding pending. While a petition under Section 402 is pending, after preliminary hearing and without notice to others, the court may issue an order to preserve and apply property of the respondent as required for the support of the respondent or an individual who is in fact dependent on the respondent.
Section 405. Appointment and role of guardian ad litem. The court may appoint a guardian ad litem to any respondent and allow suitable compensation payable out of the estate of the respondent, but the appointment shall not be made unless the court considers it necessary for the protection of the interest of the respondent; a judgment of any court is not void or erroneous because of the failure to have a guardian ad litem.
Section 406. Appointment of attorney. If the respondent in a proceeding for appointment of a conservator is not represented by an attorney, the court, in its discretion, may appoint an attorney to represent the respondent.
Section 407. Professional evaluation. (1) The chancery court must conduct a hearing to determine whether a conservator is needed for the respondent. Before the hearing, the court, in its discretion, may appoint a guardian ad litem to look after the interest of the person in question, and the guardian ad litem must be present at the hearing and present the interests of the respondent.
(2) The chancery judge shall be the judge of the number and character of the witnesses and proof to be presented, except that the proof must include certificates made after a personal examination of the respondent by the following professionals, each of whom must make in writing a certificate of the result of that examination to be filed with the clerk of the court and become a part of the record of the case
(a) Two (2) licensed physicians; or
(b) One (1) licensed physician and either one (1) licensed psychologist, nurse practitioner, or physician's assistant.
(3) The personal examination may occur face-to-face or via telemedicine, but any telemedicine examination must be made using an audiovisual connection by a physician licensed in this state and as defined in Section 83-9-351. A nurse practitioner or physician assistant conducting an examination shall not also be in a collaborative or supervisory relationship, as the law may otherwise require, with the physician conducting the examination. A professional conducting an examination under this section may also be called to testify at the hearing.
(4) The personal examination requirement in subsections (2) and (3) shall not apply if the respondent is missing, detained or unable to return to the United States.
Section 408. Rights at hearing. (1) At a hearing under Section 403, the respondent may:
(a) Present evidence and subpoena witnesses and documents;
(b) Examine witnesses; and
(c) Otherwise participate in the hearing.
(2) Unless excused by the court for good cause, a proposed conservator must attend a hearing under Section 403.
(3) A hearing under Section 403 must be closed on request of the respondent and a showing of good cause.
(4) Any person may request to participate in a hearing under Section 403. The court may grant the request, with or without a hearing, on determining that the best interest of the respondent will be served. The court may impose appropriate conditions on the person's participation.
(5) (a) If the chancellor finds from the evidence that the person is in need of a conservatorship, the chancellor must appoint a conservator over the person.
(b) The costs and expenses of the proceedings shall be paid out of the estate of the respondent if a conservator is appointed. If a conservator is not appointed, the costs and expenses shall be paid by the person instituting the proceedings.
Section 409. Confidentiality of records. (1) An individual subject to a proceeding for a conservatorship, an attorney designated by the respondent or ward, and a person entitled to notice either under Section 411(5) or court order may access court records of the proceeding and resulting conservatorship, including the conservator's plan under Section 419 and the conservator's report under Section 423. A person not otherwise entitled to access to court records under this section for good cause may petition the court for access to court records of the conservatorship, including the conservator's plan and report. The court must grant access if access is in the best interest of the respondent or ward or furthers the public interest and does not endanger the welfare or financial interests of the respondent or individual.
(2) A report under Section 405 of a guardian ad litem or professional evaluation under Section 407 may be confidential and may be sealed on filing when determined necessary by the court. If the court finds the file should be sealed, the file shall remain available to:
(a) The court;
(b) The individual who is the subject of the report or evaluation, without limitation as to use;
(c) The petitioner, guardian ad litem and petitioner's and respondent's attorneys, for purposes of the proceeding;
(d) Unless the court directs otherwise, a person appointed under a power of attorney for finances in which the respondent is identified as the principal; and
(e) Any other person if it is in the public interest or for a purpose the court orders for good cause.
Section 410. Who may be conservator. (1) Appointment of a conservator for an adult is at the discretion of the court, and in the best interest of the respondent. If two (2) or more persons have requested responsibility as conservator for the adult, the court shall select as conservator the person the court considers best qualified. In determining the best qualified person, the court shall consider the person's relationship with the respondent, the person's skills, the expressed wishes of the respondent including any designation made in a will, durable power of attorney, or health-care directive, the extent to which the person and the respondent have similar values and preferences, and the likelihood the person will be able to perform the duties of a conservator successfully. The court, acting in the best interest of the respondent, may decline to appoint as conservator a person requesting the appointment.
(2) If a qualified conservator under this section cannot be determined, or if other circumstances arise where the court determines that a conservator must instead be appointed, the court, in its discretion, may appoint the chancery court clerk or probate administrator for the county in which the proceedings were filed to serve as the respondent's conservator. The chancery court clerk or the probate administrator shall serve in the capacity ordered by the court unless a conflict of interest arises or the clerk or the probate administrator presents circumstances where the court determines the clerk's recusal from appointment is permitted.
(3) A person that provides paid services to the respondent, or an individual who is employed by a person that provides paid services to the respondent or is the spouse, parent, or child of an individual who provides or is employed to provide paid services to the respondent, may not be appointed as conservator unless:
(a) The individual is related to the respondent by blood, marriage, or adoption; or
(b) The court finds by clear and convincing evidence that the person is the best qualified person available for appointment and the appointment is in the best interest of the respondent.
(4) An owner, operator, or employee of a long-term-care institution at which the respondent is receiving care may not be appointed as conservator unless the owner, operator, or employee is related to the respondent by blood, marriage, or adoption.
Section 411. Order on appointment of conservator. (1) A court order appointing a conservator for a minor must include findings to support appointment of a conservator and, if a full conservatorship is granted, the reason a limited conservatorship would not meet the identified needs of the minor.
(2) A court order appointing a conservator for an adult must:
(a) Include a specific finding that clear and convincing evidence has established that the identified needs of the respondent cannot be met by a less restrictive alternative, including use of appropriate supportive services or technological assistance; and
(b) Include a specific finding that clear and convincing evidence established that the respondent was given proper notice of the hearing on the petition.
(3) A court order establishing a full conservatorship for an adult must state the basis for granting a full conservatorship and include specific findings to support the conclusion that a limited conservatorship would not meet the functional needs of the adult.
(4) A court order establishing a limited conservatorship must state the specific property placed under the control of the conservator and the powers granted to the conservator.
(5) The court, as part of an order establishing a conservatorship, must identify and include the contact information for any person that subsequently is entitled to:
(a) Notice of the rights of the ward under Section 412(2);
(b) Notice of a sale of or surrender of a lease to the primary dwelling of the individual;
(c) Notice that the conservator has delegated a power that requires court approval under Section 414 or substantially all powers of the conservator;
(d) Notice that the conservator will be unavailable to perform the conservator's duties for more than one (1) month;
(e) A copy of the conservator's plan under Section 419 and the conservator's report under Section 423;
(f) Access to court records relating to the conservatorship;
(g) Notice of a transaction involving a substantial conflict between the conservator's fiduciary duties and personal interests;
(h) Notice of the death or significant change in the condition of the individual;
(i) Notice that the court has limited or modified the powers of the conservator; and
(j) Notice of the removal of the conservator.
(6) If a ward is an adult, the spouse and adult children of the ward are entitled under subsection (5) to notice unless the court determines notice would be contrary to the preferences or prior directions of the ward are not in the best interest of the adult.
(7) If a ward is a minor, each parent and adult sibling of the minor is entitled to notice under subsection (5) unless the court determines notice would not be in the best interest of the minor.
Section 412. Notice of order of appointment; rights. (1) A conservator appointed under Section 411 shall give to the ward and to all other persons given notice under Section 403 a copy of the order of appointment. The order and notice must be given not later than fourteen (14) days after the appointment.
(2) Not later than fourteen (14) days after appointment of a conservator under Section 411, the court must give to the ward, the conservator, and any other person entitled to notice under Section 411(5), a statement of the rights of the ward and procedures to seek relief if the ward is denied those rights. The statement must be in plain language, in at least sixteen-point font, and to the extent feasible, in a language in which the ward is proficient. The statement must notify the ward of the right to:
(a) Seek termination or modification of the conservatorship, or removal of the conservator, and choose an attorney to represent the individual in these matters;
(b) Participate in decision-making to the extent reasonably feasible;
(c) Receive a copy of the conservator's plan under Section 419, the conservator's inventory under Section 420, and the conservator's report under Section 423; and
(d) Object to the conservator's inventory, plan, or report.
(3) If a conservator is appointed for the reasons stated in Section 401(2)(a)(ii) and the ward is missing, notice under this section to the individual is not required.
Section 413. Emergency conservator. (1) Upon a petition by a person interested in an individual's welfare or a petition filed under Section 402, the court may appoint an emergency conservator for the individual if the court finds:
(a) Appointment of an emergency conservator is likely to prevent substantial and irreparable harm to the individual's property or financial interests;
(b) No other person appears to have authority and willingness to act in the circumstances; and
(c) There is reason to believe that a basis for appointment of a conservator under Section 401 exists.
(2) The duration of authority of an emergency conservator may not exceed sixty (60) days and the emergency conservator may exercise only the powers specified in the order of appointment. The emergency conservator's authority may be extended once for not more than sixty (60) days if the court finds that the conditions for appointment of an emergency conservator under subsection (1) continue.
(3) Except as otherwise provided in subsection (4), reasonable notice of the date, time, and place of a hearing on the petition must be given to the respondent, the respondent's attorney, and any other person the court determines.
(4) The court may appoint an emergency conservator without notice to the respondent and any attorney for the respondent only if the court finds from an affidavit or testimony that the respondent's property or financial interests will be substantially and irreparably harmed before a hearing with notice on the appointment can be held. If the court appoints an emergency conservator without giving notice under subsection (3), the court must give notice of the appointment not later than forty-eight (48) hours after the appointment to:
(a) The respondent;
(b) The respondent's attorney;
(c) Any other person the court determines; and
(d) Hold a hearing on the appropriateness of the appointment not later than five (5) days after the appointment.
(5) Appointment of an emergency conservator under this section is not a determination that a basis exists for appointment of a conservator under Section 401.
(6) The court may remove an emergency conservator appointed under this section at any time. The emergency conservator shall make any report the court requires.
Section 414. Powers of conservator requiring court approval. (1) Except as otherwise ordered by the court, a conservator must give notice to persons entitled to notice under Section 411(5) and receive specific authorization by the court before the conservator may exercise with respect to the conservatorship the power to:
(a) Make a gift;
(b) Sell, encumber an interest in, or surrender a lease to the primary dwelling of the ward;
(c) Convey, release, or disclaim a contingent or expectant interest in property, including marital property and any right of survivorship incident to joint tenancy or tenancy by the entireties;
(d) Exercise or release a power of appointment;
(e) Create a revocable or irrevocable trust of property of the conservatorship estate, whether or not the trust extends beyond the duration of the conservatorship, or revoke or amend a trust revocable by the ward;
(f) Exercise a right to elect an option or change a beneficiary under an insurance policy or annuity or surrender the policy or annuity for its cash value;
(g) Exercise a right to an elective share in the estate of a deceased spouse of the ward or renounce or disclaim a property interest;
(h) Grant a creditor priority for payment over creditors of the same or higher class if the creditor is providing property or services used to meet the basic living and care needs of the ward and preferential treatment otherwise would be impermissible under Section 425(6);
(i) Make, modify, amend, or revoke the will of the ward in compliance with Section 91-5-1 et seq.;
(j) Pay premiums on any insurance policy issued on the life of the ward if the individual is a minor, the policy was issued during the lifetime of the individual's deceased parent, and the court finds the policy's continuance is warranted;
(k) Acquire or dispose of real property, including real property in another state, for cash or on credit, at public or private sale, and manage, develop, improve, exchange, partition, change the character of, or abandon property;
(l) Make repairs or alterations in a building or other structure, demolish any improvement, or raze an existing or erect a new wall or building if costs exceed Two Thousand Five Hundred Dollars ($2,500.00);
(m) Subdivide or develop land, dedicate land to public use, make or obtain the vacation of a plat and adjust a boundary, adjust a difference in valuation of land, exchange or partition land by giving or receiving consideration, and dedicate an easement to public use without consideration;
(n) Enter for any purpose into a lease of property as lessor or lessee, with or without an option to purchase or renew, for a term within or extending beyond the term of the conservatorship;
(o) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or a pooling or unitization agreement;
(p) Borrow funds, with or without security, to be repaid from the conservatorship estate or otherwise;
(q) Pay or contest a claim, settle a claim by or against the conservatorship estate or the ward by compromise, arbitration, or otherwise, or release, in whole or in part, a claim belonging to the conservatorship estate to the extent the claim is uncollectible; or
(r) Bring an action, claim, or proceeding in any jurisdiction for the protection of the conservatorship estate or the conservator in the performance of the conservator's duties;
(2) In approving a conservator's exercise of a power listed in subsection (1), the court must consider the wards's prior or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the conservator. The court also must consider:
(a) The financial needs of the ward and individuals who are in fact dependent on the ward for support, and the interests of creditors of the individual;
(b) Possible reduction of income, estate, inheritance, or other tax liabilities;
(c) Eligibility for governmental assistance;
(d) The previous pattern of giving or level of support provided by the individual;
(e) Any existing estate plan or lack of estate plan of the individual;
(f) The life expectancy of the individual and the probability the conservatorship will terminate before the ward's death; and
(g) Any other relevant factor.
(3) A conservator may not revoke or amend a power of attorney for finances executed by the ward. If a power of attorney for finances is in effect, a decision of the conservator takes precedence over that of the attorney-in-fact only to the extent of the authorization granted to the conservator by court order.
Section 415. Petition for order after appointment. A ward or a person interested in the welfare of the individual may petition for an order:
(a) Requiring the conservator to furnish a bond or collateral or additional bond or collateral or allowing a reduction in a bond or collateral previously furnished;
(b) Requiring an accounting for the administration of the conservatorship estate;
(c) Directing distribution;
(d) Removing the conservator and appointing a temporary or successor conservator;
(e) Modifying the type of appointment or powers granted to the conservator, if the extent of protection or management previously granted is excessive or insufficient to meet the individual's needs, including because the individual's abilities or supports have changed;
(f) Rejecting or modifying the conservator's plan under Section 419, the conservator's inventory under Section 420, or the conservator's report under Section 423; or
(g) Granting other appropriate relief.
Section 416. Bond; oath; waiver; financial institutions; alternative asset-protection arrangement. (1) Except as otherwise provided in subsection (3), the court shall require a conservator to furnish a bond with a surety the court specifies, or require an alternative asset-protection arrangement, conditioned on faithful discharge of all duties of the conservator. The court may waive or partially waive the requirement if:
(a) The respondent is a minor and the minor's parent has waived the requirement in a valid holographic will or another instrument to take effect at the parent's death that is signed by the parent and attested by two (2) or more credible witnesses, not including the person nominated as conservator; or
(b) Part of the assets of the ward's estate are deposited in one or more banking corporations, building and loan associations or savings and loan associations ("financial institutions") in this state if the deposits are fully insured by the Federal Deposit Insurance Corporation (FDIC) and will remain on deposit in that institution until further order of the court, a certified copy or MEC-filed copy of the order for deposit having been furnished to the depository or depositories and its receipt acknowledged in a form that substantially complies with subsection (7); or
(c) The court finds that a bond or other asset-protection arrangement is not necessary to protect the interests of the individual subject to conservatorship. Except as otherwise provided in subsection (3), the court may not waive the requirement of bond or other asset-protection arrangement if the conservator is in the business of serving as a conservator and is being paid for the conservator's service.
(2) Unless the court directs otherwise, the bond required under this section must be in the amount of the aggregate capital value of the conservatorship estate, plus one (1) year's estimated income, less the value of property deposited under an arrangement requiring a court order for its removal and real property the conservator lacks power to sell or convey without specific court authorization. The court, in place of surety on a bond, may accept collateral for the performance of the bond, including a pledge of securities or a mortgage of real property.
(3) A banking institution insured by the FDIC qualified to do trust business in this state is not required to give a bond under this section.
(4) Every bond must be filed in the records of the chancery court and may be put in suit for any breach of the condition, whether the appointment be legal or not; and the condition shall be as follows:
"The condition of the above obligation is that if the above bound, as conservator of _______________ in ____________ County shall faithfully discharge all the duties required of him by law, then the above obligation shall cease."
The conservator must also take and subscribe on oath, at or before the conservator's appointment, faithfully to discharge the duties of conservator of the ward according to law.
(5) A financial institution that substantially complies with the provisions of this article when acting as a depository of conservatorship funds is not liable to any person for so acting except for willful default, gross negligence or malfeasance.
(6) A financial institution that acts as a depository of the funds may charge a fee for servicing the account.
(7) ACKNOWLEDGMENT OF RECEIPT OF ORDER FOR DEPOSIT
AND RECEIPT OF CASH FUNDS
The Chancery Court of ______________ County, Mississippi, having rendered its order in the above-entitled and numbered cause on the ____ day of ____________, _____________, designating a banking institution insured by the Federal Deposit Insurance Corporation as the depository of the funds of _________________________________________, by and through _______________________________________, as conservator, and the conservator, having elected to use ______________________________________________(Name of Financial Institution) as the aforesaid depository, I, acting pursuant to my authority in and for said bank, do hereby acknowledge that I have received a copy of the order of the chancery court, duly certified as true and correct by the chancery clerk of __________________ County, Mississippi, or a MEC filed copy of the order of the chancery court. I further note that said order provides that all funds so deposited to the account shall remain on deposit until further order of the court.
Receipt is also hereby acknowledged of the funds in the amount of $__________________ in this matter.
________________________________(Name of Financial Institution) hereby acknowledges that the funds, described above, shall not be disbursed without further order of this court.
This the day of ____________, _________________.
STATE OF MISSISSIPPI
COUNTY OF _________________________
Personally came and appeared before me, the undersigned authority in and for the jurisdiction aforesaid, the within named _____________________________ (Name of Bank Officer), who is _____________________________ (Job Title) of _____________________________ (Name of Financial Institution) and who acknowledged to me that he/she signed and delivered the above and foregoing Acknowledgment of Receipt of Order for Deposit and Receipt of Cash Funds as the act and deed of said bank, he/she being first duly authorized so to do.
Given under my hand and official seal, this the _______________ day of ____________, ____________________.
___________________________ ______________________
Notary Public My commission expires
Section 417. Terms and requirements of bond. (1) The following rules apply to the bond required under Section 416:
(a) Except as otherwise provided by the bond, the surety and the conservator are jointly and severally liable.
(b) By executing a bond provided by a conservator, the surety submits to the personal jurisdiction of the court that issued letters of office to the conservator in a proceeding relating to the duties of the conservator in which the surety is named as a party. Notice of the proceeding must be given to the surety at the address shown in the records of the court in which the bond is filed and any other address of the surety then known to the person required to provide the notice.
(c) On petition of a successor conservator or person affected by a breach of the obligation of the bond, a proceeding may be brought against the surety for breach of the obligation of the bond.
(d) A proceeding against the bond may be brought until liability under the bond is exhausted.
(2) A proceeding may not be brought under this section against a surety of a bond on a matter as to which a proceeding against the conservator is barred.
(3) If a bond under Section 416 is not renewed by the conservator, the surety or sureties immediately must give notice to the court and the attorney for the conservatorship.
Section 418. Duties of conservator. (1) A conservator is a fiduciary and has duties of prudence and loyalty to the ward.
(2) A conservator must promote the self-determination of the ward and, to the extent feasible, encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs.
(3) In making a decision for a ward, the conservator must make the decision the conservator reasonably believes the ward would make if able, unless doing so would fail to preserve the resources needed to maintain the ward's well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the ward. To determine the decision the ward would make if able, the conservator must consider the ward's prior or current directions, preferences, opinions, values, and actions, to the extent actually known or reasonably ascertainable by the conservator.
(4) If a conservator cannot make a decision under subsection (3) because the conservator does not know and cannot reasonably determine the decision the ward probably would make if able, or the conservator reasonably believes the decision the individual would make would fail to preserve resources needed to maintain the ward's well-being and lifestyle or otherwise unreasonably harm or endanger the welfare or personal or financial interests of the ward, the conservator shall act in accordance with the best interest of the ward. In determining the best interest of the ward, the conservator shall consider:
(a) Information received from professionals and persons who demonstrate sufficient interest in the welfare of the ward;
(b) Other information the conservator believes the ward would have considered if the ward were able to act; and
(c) Other factors a reasonable person in the circumstances of the ward would consider, including consequences for others.
(5) Except when inconsistent with the conservator's duties under subsections (1) through (4), and where investments other than in FDIC-insured investments are permitted in the court's order approving the conservator's plan, a conservator must invest and manage the conservatorship estate as a prudent investor would, by considering:
(a) The circumstances of the ward and the conservatorship estate;
(b) General economic conditions;
(c) The possible effect of inflation or deflation;
(d) The expected tax consequences of an investment decision or strategy;
(e) The role of each investment or course of action in relation to the conservatorship estate as a whole;
(f) The expected total return from income and appreciation of capital;
(g) The need for liquidity, regularity of income, and preservation or appreciation of capital; and
(h) The special relationship or value, if any, of specific property to the ward.
(6) The propriety of a conservator's investment and management of the conservatorship estate is determined in light of the facts and circumstances existing when the conservator decides or acts and not by hindsight.
(7) A conservator must make a reasonable effort to verify facts relevant to the investment and management of the conservatorship estate.
(8) A conservator that has special skills or expertise, or is named conservator in reliance on the conservator's representation of special skills or expertise, has a duty to use the special skills or expertise in carrying out the conservator's duties.
(9) In investing, selecting specific property for distribution, and invoking a power of revocation or withdrawal for the use or benefit of the ward, a conservator must consider any estate plan of the ward known or reasonably ascertainable to the conservator and may examine the will or other donative, nominative, or appointive instrument of the individual.
(10) A conservator must maintain insurance on the insurable real and personal property of the ward, unless the conservatorship estate lacks sufficient funds to pay for insurance or the court finds:
(a) The property lacks sufficient equity; or
(b) Insuring the property would unreasonably dissipate the conservatorship estate or otherwise not be in the best interest of the ward.
(11) A conservator has access to and authority over a digital asset of the ward to the extent provided by the Revised Uniform Fiduciary Access to Digital Assets Act (Title 21, Chapter 23, Mississippi Code of 1972).
(12) A conservator for an adult must notify the court if the condition of the adult has changed so that the adult has become capable of autonomy in exercising rights previously delegated to the conservator. The notice must be given immediately on learning of the change.
Section 419. Conservator's plan. (1) If required by the court, a conservator must file with the court a plan for investing, protecting, managing, expending, and distributing the assets of the conservatorship estate no later than ninety (90) days after the court's order of appointment or order to file a plan. If a plan is required and there is a significant change in circumstances, or if the conservator seeks to deviate significantly from the conservator's plan, a conservator must file with the court a revised plan no later than ninety (90) days after the change in circumstances or decision to deviate from the plan. Every plan must be based on the needs of the ward and take into account the best interest of the ward as well as the ward's preferences, values, and prior directions, to the extent known to or reasonably ascertainable by the conservator. Along with other items determined necessary by the court, the conservator's plan must include:
(a) A budget containing projected expenses and resources, including an estimate of the total amount of fees the conservator anticipates charging per year and a statement or list of the amount the conservator proposes to charge for each service the conservator anticipates providing to the individual;
(b) How the conservator will involve the individual in decisions about management of the conservatorship estate;
(c) Any step the conservator plans to take to develop or restore the ability of the ward to manage the conservatorship estate; and
(d) An estimate of the duration of the conservatorship.
(2) A conservator must give reasonable notice of the filing of the conservator's plan under subsection (1), together with a copy of the plan, to the ward, a person entitled to notice under Section 411(5) or a court order, and any other person the court determines. The notice must include a statement of the right to object to the plan and be given not later than fourteen (14) days after the filing.
(3) A ward and any person entitled under subsection (2) to receive notice and a copy of the conservator's plan may object to the plan.
(4) The court must review the conservator's plan filed under subsection (1) and determine whether to approve the plan or require a new plan. In deciding whether to approve the plan, the court shall consider objections made under subsection (3) and whether the plan is consistent with the conservator's duties and powers. The court may not approve the plan until thirty (30) days after its filing.
(5) After a conservator's plan under this section is approved by the court, the conservator must provide a copy of the plan to the ward, a person entitled to notice under Section 411(5) or a court order, and any other person the court determines.
Section 420. Inventory; records. (1) Unless the inventory requirement has been waived, not later than ninety (90) days after appointment, a conservator must prepare and file with the appointing court a detailed inventory of the conservatorship estate, together with an oath or affirmation that the inventory is believed to be complete and accurate as far as information permits.
(2) A conservator must give reasonable notice of the filing of an inventory to the ward, a person entitled to notice under Section 411(5) or a court order, and any other person the court determines. The notice must be given not later than fourteen (14) days after the filing.
(3) A conservator must keep records of the administration of the conservatorship estate and make them available for examination on reasonable request of the ward, a guardian for the ward, or any other person the conservator or the court determines.
Section 421. Administrative powers of conservator not requiring court approval. (1) Except as otherwise provided in Section 414 or qualified or limited in the court's order of appointment and stated in the letters of conservatorship, a conservator has all powers granted in this section and any additional power granted to a trustee by law of this state other than this act.
(2) The court may authorize the conservator in a court order to execute powers not listed in Section 414 without prior specific court authorization or confirmation, including by way of illustration, but not limited to, the following:
(a) To collect, hold, and retain property, including property in which the conservator has a personal interest and real property in another state, until the conservator determines disposition of the property should be made;
(b) To receive additions to the conservatorship estate;
(c) To continue or participate in the operation of a business or other enterprise;
(d) To acquire an undivided interest in property in which the conservator, in a fiduciary capacity, holds an undivided interest;
(e) To acquire or dispose of personal property;
(f) To continue to invest assets;
(g) To deposit funds or other property in a financial institution, including one operated by the conservator;
(h) To grant an option involving disposition of property or accept or exercise an option for the acquisition of property;
(i) To vote a security, in person or by general or limited proxy;
(j) To pay a call, assessment, or other sum chargeable or accruing against or on account of a security;
(k) To sell or exercise a stock subscription or conversion right;
(l) To consent, directly or through a committee or agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(m) To hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery;
(n) To insure:
(i) The conservatorship estate, in whole or in part, against damage or loss in accordance with Section 418(10); and
(ii) The conservator against liability with respect to a third person;
(o) Advance funds for the protection of the conservatorship estate or the ward and all expenses, losses, and liability sustained in the administration of the conservatorship estate or because of holding any property for which the conservator has a lien on the conservatorship estate;
(p) Pay a tax, assessment, compensation of the conservator or any guardian, and other expense incurred in the collection, care, administration, and protection of the conservatorship estate;
(q) Pay a sum distributable to the ward or an individual who is in fact dependent on the ward by paying the sum to the distributee or for the use of the distributee:
(i) To the guardian for the distributee;
(ii) To the custodian of the distributee under Section 91-20-1 et seq., or
(iii) If there is no guardian, custodian, or custodial trustee, to a relative or other person having physical custody of the distributee;
(r) Defend an action, claim, or proceeding in any jurisdiction for the protection of the conservatorship estate or the conservator in the performance of the conservator's duties;
(s) Structure the finances of the ward to establish eligibility for a public benefit, including by making gifts consistent with the ward's preferences, values, and prior directions, if the conservator's action does not jeopardize the ward's welfare and otherwise is consistent with the conservator's duties; and
(t) Execute and deliver any instrument that will accomplish or facilitate the exercise of a power of the conservator.
Section 422. Distribution from conservatorship estate. Except as otherwise provided in Section 414 or qualified or limited in the court's order of appointment and stated in the letters of conservatorship, and unless contrary to a conservator's plan under Section 419, the conservator may expend or distribute income or principal of the conservatorship estate for the support, care, education, health, or welfare of the ward or an individual who is in fact dependent on the ward, including the payment of child or spousal support, without specific court authorization or confirmation in accordance with the following rules:
(a) The conservator shall consider a recommendation relating to the appropriate standard of support, care, education, health, or welfare for the ward or individual who is dependent on the ward, made by a guardian for the ward, if any, and, if the ward is a minor, a recommendation made by a parent of the minor. If the minor has a father or mother, the court shall determine whether the expense of maintaining and educating the minor shall be borne by the ward's estate.
(b) The conservator acting in compliance with the conservator's duties under Section 418 is not liable for an expenditure or distribution made based on a recommendation under paragraph (a) unless the conservator knows the expenditure or distribution is not in the best interest of the ward.
(c) In making an expenditure or distribution under this section, the conservator must consider:
(i) The size of the conservatorship estate, the estimated duration of the conservatorship, and the likelihood the ward, at some future time, may be fully self-sufficient and able to manage the individual's financial affairs and the conservatorship estate;
(ii) The accustomed standard of living of the ward and individual who is dependent on the ward;
(iii) Other funds or sources used for the support of the ward; and
(iv) The preferences, values, and prior directions of the ward.
(d) Funds expended or distributed under this section may be paid by the conservator to any person, including the ward, as reimbursement for expenditures the conservator might have made, or in advance for services to be provided to the ward or individual who is dependent on the ward if it is reasonable to expect the services will be performed and advance payment is customary or reasonably necessary under the circumstances.
Section 423. Conservator's report and accounting; monitoring. (1) Except as otherwise provided under subsection (11), a conservator must file a report in a record regarding the administration of the conservatorship estate with the court annually unless the court otherwise directs, if provided by will, or made necessary by resignation or removal, or termination of the conservatorship. A conservator must petition the court for approval of a report filed under this section. The court, after review, may approve the report.
(2) A report under subsection (1) must state or contain:
(a) An accounting that lists property included in the conservatorship estate and the receipts, disbursements, liabilities, and distributions during the period for which the report is made;
(b) A list of the services provided to the ward;
(c) A statement whether the conservator has deviated from the plan and, if so, how the conservator has deviated and why;
(d) A recommendation as to the need for continued conservatorship and any recommended change in the scope of the conservatorship;
(e) Anything of more than de minimis value which the conservator, any individual who resides with the conservator, or the spouse, parent, child, or sibling of the conservator has received from a person providing goods or services to the ward; and
(f) Any business relationship the conservator has with a person the conservator has paid or that has benefited from the property of the ward.
(3) The court, in its discretion, may request a copy of the most recent reasonably available financial statements evidencing the status of bank accounts, investment accounts, and mortgages or other debts of the ward with all but the last four (4) digits of the account numbers and social security number redacted;
(4) The court may appoint a guardian ad litem to review a report under this section or a conservator's plan under Section 419, to interview the ward or conservator, or to investigate any other matter involving the conservatorship. In connection with the report, the court may order the conservator to submit the conservatorship estate to appropriate examination in a manner the court directs.
(5) Reasonable notice of the filing under this section of a conservator's report, together with a copy of the report, must be provided to the ward, a person entitled to notice under Section 411(5) or a court order, and other persons the court determines. The notice and report must be given not later than fourteen (14) days after filing.
(6) The court may establish procedures for monitoring a report submitted under this section and review each report at least annually unless otherwise directed by the court. The court must consider whether:
(a) The reports provide sufficient information to establish that the conservator has complied with the conservator's duties;
(b) The conservatorship should continue; and
(c) The conservator's requested fees, if any, should be approved.
(7) If the court determines there is reason to believe a conservator has not complied with the conservator's duties or the conservatorship should not continue, the court:
(a) Shall notify the ward, the conservator, and any other person entitled to notice under Section 411(5) or a court order;
(b) May require additional information from the conservator;
(c) May appoint a guardian ad litem to interview the ward or conservator or investigate any matter involving the conservatorship; and
(d) Consistent with Sections 430 and 431, may hold a hearing to consider removal of the conservator, termination of the conservatorship, or a change in the powers granted to the conservator or terms of the conservatorship.
(8) If the court has reason to believe fees requested by a conservator are not reasonable, the court shall hold a hearing to determine whether to adjust the requested fees.
(9) An order may be entered, after notice and consideration by the court, approving a report of a conservator filed under this section.
(10) A conservator may seek an order, after notice and hearing, approving a report filed under this Section that discharges the conservator from all liabilities, claims, and causes of action by a person given notice of the report and the hearing as to a matter adequately disclosed in the report.
(11) When the funds and personal property of the ward do not exceed the sum or value of Ten Thousand Dollars ($10,000.00) and there is no foreseeable prospect of further receipt to come into the hands of the conservator other than interest thereon, or in conservatorships in which the only funds on hand or to be received by the guardian are funds paid or to be paid by a government agency providing protective services to adults or children for the benefit of the ward, the chancery court or chancellor in vacation, for good cause shown, in the chancellor's discretion and upon being satisfied it is to the best interest and welfare of the ward, may authorize the guardian to dispense with further annual accounts, except for a final account.
Section 424. Attempted transfer of property by the ward. (1) The interest of a ward in property included in the conservatorship estate is not transferrable or assignable by the ward and is not subject to levy, garnishment, or similar process for claims against the ward unless allowed under Section 427.
(2) If a ward enters into a contract after the right to enter the contract has been delegated to another by the court, the contract is void against the ward and the ward's property but is enforceable against the person that contracted with the ward.
(3) A person other than the conservator that deals with a ward with respect to property included in the conservatorship estate is entitled to protection provided by law of this state other than this act.
Section 425. Transaction involving conflict of interest. A transaction involving a conservatorship estate which is affected by a substantial conflict between the conservator's fiduciary duties and personal interests is voidable unless the transaction is authorized by court order after notice to persons entitled to notice under Section 411(5) or a court order. A transaction affected by a substantial conflict includes a sale, encumbrance, or other transaction involving the conservatorship estate entered into by the conservator, an individual with whom the conservator resides, the spouse, descendant, sibling, or attorney of the conservator, or a corporation or other enterprise in which the conservator has a substantial beneficial interest.
Section 426. Protection of person dealing with conservator. (1) A person that assists or deals with a conservator in good faith and for value in any transaction, other than a transaction requiring a court order under Section 414, is protected as though the conservator properly exercised any power in question. Mere knowledge by a person that the person is dealing with a conservator does not require the person to inquire into the existence of authority of the conservator or the propriety of the conservator's exercise of authority, but restrictions on authority stated in letters of conservatorship, or otherwise provided by law, are effective as to the person. A person that pays or delivers property to a conservator is not responsible for proper application of the property.
(2) Protection under subsection (1) extends to a procedural irregularity or jurisdictional defect in the proceeding leading to the issuance of letters of conservatorship and does not substitute for protection for a person that assists or deals with a conservator provided by comparable provisions in law of this state other than this act relating to a commercial transaction or simplifying a transfer of securities by a fiduciary.
Section 427. Presentation and allowance of claim. (1) A conservator may pay, or secure by encumbering property included in the conservatorship estate, a claim against the conservatorship estate or the ward arising before or during the conservatorship, on presentation and allowance in accordance with the priorities under subsection (6). A claimant may present a claim by filing the claim with the court, in a form acceptable to the court, and sending or delivering a copy of the claim to the conservator.
(2) A presented claim is allowed if it is not disallowed in whole or in part by the conservator in a record sent or delivered to the claimant not later than ninety (90) days after its presentation. Before payment, the conservator may change an allowance of the claim to a disallowance in whole or in part, but not after allowance under a court order or order directing payment of the claim. Presentation of a claim tolls the running of a statute of limitations that has not expired relating to the claim until thirty (30) days after disallowance of the claim.
(3) A claimant whose claim has not been paid may petition the court to determine the claim at any time before it is barred by a statute of limitations, and the court may order its allowance, payment, or security by encumbering property included in the conservatorship estate. If a proceeding is pending against the ward at the time of appointment of the conservator or is initiated after the appointment, the moving party must give the conservator notice of the proceeding if it could result in creating a claim against the conservatorship estate.
(4) If a conservatorship
estate is likely to be exhausted before all existing claims are paid, the
provisions of the law on proceedings to insolvency and distribution of assets
of insolvent estates shall, as far as applicable and not otherwise provided, be
observed and enforced.
(5) When the claims are established and the amount of assets ascertained, the court shall adjudge the pro rata share of each claimant, deducting first the preference claims in the following order:
(a) Costs and expenses of administration;
(b) A claim of the federal or state government having priority under law other than this act;
(c) A claim incurred by the conservator for support, care, education, health, or welfare previously provided to the ward or an individual who is in fact dependent on the ward;
(d) A claim arising before the conservatorship; and
(e) All other claims.
(6) Preference may not be given in the payment of a claim under subsection (5) over another claim of the same class. A claim due and payable may not be preferred over a claim not due unless:
(a) Doing so would leave the conservatorship estate without sufficient funds to pay the basic living and health-care expenses of the ward; and
(b) The court authorizes the preference under Section 414(1)(h).
(7) If assets of a conservatorship estate are adequate to meet all existing claims, the court, acting in the best interest of the ward, may order the conservator to grant a security interest in the conservatorship estate for payment of a claim at a future date.
Section 428. Personal liability of conservator. (1) Except as otherwise agreed by a conservator, the conservator is not personally liable on a contract properly entered into in a fiduciary capacity in the course of administration of the conservatorship estate unless the conservator fails to reveal the conservator's representative capacity in the contract or before entering into the contract.
(2) A conservator may be personally liable for an obligation arising from control of property of the conservatorship estate or 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 fiduciary duty.
(3) A claim based on a contract entered into by a conservator in a fiduciary capacity, an obligation arising from control of property included in the conservatorship estate, or a tort committed in the course of administration of the conservatorship estate may be asserted against the conservatorship estate in a proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable for the claim.
(4) A question of liability between a conservatorship estate and the conservator personally may be determined in a proceeding for accounting, surcharge, or indemnification or another appropriate proceeding or action.
Section 429. Removal of conservator; appointment of successor. (1) The court may remove a conservator for failure to perform the conservator's duties or other good cause and appoint a successor conservator to assume the duties of the conservator.
(2) The court must hold a hearing to determine whether to remove a conservator and appoint a successor on:
(a) A petition of the ward, conservator, or person interested in the welfare of the ward that contains allegations which, if true, would support a reasonable belief that removal of the conservator and appointment of a successor may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed during the preceding six (6) months;
(b) Communication from the ward, conservator, or person interested in the welfare of the ward which supports a reasonable belief that removal of the conservator and appointment of a successor may be appropriate; or
(c) Determination by the court that a hearing would be in the best interest of the ward.
(3) Notice of a petition under subsection (2)(a) must be given to the ward, the conservator, and any other person the court determines.
(4) A ward who seeks to remove the conservator and have a successor appointed has the right to choose an attorney to represent the ward in this matter. If the ward is not represented by an attorney, the court may appoint an attorney under the same conditions as in Section 406. The court may award reasonable attorney's fees to the attorney as provided in Section 118.
(5) In selecting a successor conservator, the court must follow the priorities under Section 410.
Section 430. Termination or modification of conservatorship. A conservatorship must be terminated when the minor becomes an adult, becomes emancipated, or dies; the termination must comply with Section 423, but a conservatorship may continue into adulthood when the court finds the ward qualifies for conservatorship as an adult under the provisions of subsections (4) and (5).
(1) A ward, the conservator, or a person interested in the welfare of the individual may petition for:
(a) Termination of the conservatorship on the ground that a basis for appointment under Section 401 does not exist or termination would be in the best interest of the ward or for other good cause; or
(b) Modification of the conservatorship on the ground that the extent of protection or assistance granted is not appropriate or for other good cause shown.
(2) The court must hold a hearing to determine whether termination or modification of a conservatorship is appropriate on:
(a) Petition under subsection (3) that contains allegations which, if true, would support a reasonable belief that termination or modification of the conservatorship may be appropriate, but the court may decline to hold a hearing if a petition based on the same or substantially similar facts was filed within the preceding six (6) months;
(b) A communication from the ward, conservator, or person interested in the welfare of the ward which supports a reasonable belief that termination or modification of the conservatorship may be appropriate, including because the functional needs of the ward or supports or services available to the ward have changed;
(c) A report from a guardian or conservator which indicates that termination or modification may be appropriate because the functional needs or supports or services available to the ward have changed or other less restrictive alternative is available; or
(d) A determination by the court that a hearing would be in the best interest of the ward.
(3) Notice of a petition under subsection (2) must be given to the ward, the conservator, and any such other person the court determines.
(4) On presentation of prima facie evidence for termination of a conservatorship, the court must order termination unless it is proven that a basis for appointment of a conservator under Section 401 exists.
(5) The court must modify the powers granted to a conservator if the powers are excessive or inadequate due to a change in the abilities or limitations of the ward, the ward's supports, or other circumstances.
(6) Unless the court otherwise orders for good cause, before terminating a conservatorship, the court shall follow the same procedures to safeguard the rights of the ward which apply to a petition for conservatorship.
(7) A ward who seeks to terminate or modify the terms of the conservatorship has the right to choose an attorney to represent the ward in this matter. If the ward is not represented by an attorney, the court may appoint an attorney under the same conditions as in Section 406. The court may award reasonable attorney's fees to the attorney as provided in Section 119.
(8) On termination of a conservatorship other than by reason of the death of the ward, property of the conservatorship estate passes to the ward. The order of termination must direct the conservator to file a final report and petition for discharge on approval by the court of the final report.
(9) If a ward dies testate, the conservator must deliver the will to the named representative and certify that delivery to the court. If the ward dies intestate, Section 91-7-68 governs.
Section 431. Transfer for benefit of minor without appointment of conservator. (1) Unless a person required to transfer funds or other property to a minor knows that a conservator for the minor has been appointed or a proceeding is pending for conservatorship, the person may transfer an amount or value not exceeding Twenty-five Thousand Dollars ($25,000.00) in a twelve-month period to:
(a) A person who has care or custody of the minor and with whom the minor resides;
(b) A guardian for the minor;
(c) A custodian under the Uniform Transfers to Minors Act, Section 91-20-1 et seq.; or
(d) A financial institution as a deposit in an account or certificate solely in the name of the minor; notice of the deposit must be given to the minor; or
(e) An Achieving a Better Life Experience (ABLE) account.
(2) A person that transfers funds or other property under this section is not responsible for its proper application.
(3) A person that receives funds or other property for a minor under subsection (1)(a) or (b) may apply it only to the support, care, education, health, or welfare of the minor, and may not derive a personal financial benefit from it, except for reimbursement for necessary expenses. Funds not applied for these purposes must be preserved for the future support, care, education, health, or welfare of the minor, and the balance, if any, transferred to the minor when the minor becomes an adult or otherwise is emancipated.
(4) Contributions to an ABLE account, and the provisions for permissible disbursements from such account, shall be governed by Internal Revenue Code Section 529A and the terms of the applicable ABLE plan. The amount of annual contributions is subject to Internal Revenue Code Section 2503(c).
SECTION 2. Section 9-1-49, Mississippi Code of 1972, is amended as follows:
9-1-49. (1) The clerk of the court shall prepare and forward to the Department of Public Safety the information described by subsection (2) of this section not later than the thirtieth day after the date the court:
(a) Judicially determines that a person is a person with mental illness or person with an intellectual disability under Title 41, Chapter 21, Mississippi Code of 1972, whether ordered for inpatient treatment, outpatient treatment, day treatment, night treatment or home health services treatment;
(b) Acquits a person in a criminal case by reason of insanity or on a ground of intellectual disability, without regard to whether the person is ordered by a court to receive inpatient treatment or residential care under Section 99-13-7;
(c) Appoints a
guardian or conservator under * * * Article 2, 3 or 4 of
Section 1 of this act, based on the determination that the person is
incapable of managing his own person or estate * * *;
(d) Determines that a person is incompetent to stand trial pursuant to Rule 9.06 of the Mississippi Rules of Circuit and County Court Practice;
(e) Finds under
Section * * *
318 or 430 of Section 1 of this act that a person has been
restored to reason; or
(f) Enters an order of relief from a firearms disability under Section 97-37-5(4).
(2) The clerk of the court shall prepare and forward the following information:
(a) The complete name, race, and sex of the person;
(b) Any known identifying number of the person, including social security number, driver's license number, or state identification card number;
(c) The person's date of birth; and
(d) The federal prohibited-person information that is the basis of the report required by this section.
(3) If practicable, the clerk of the court shall forward to the Department of Public Safety the information described by subsection (2) of this section in an electronic format prescribed by the department.
(4) If an order previously reported to the department under subsection (1) of this section is reversed by order of any court, the clerk shall notify the department of the reversal not later than thirty (30) days after the clerk receives the court order or the mandate from the appellate court.
(5) The duty of a clerk to prepare and forward information under this section is not affected by:
(a) Any subsequent appeal of the court order;
(b) Any subsequent modification of the court order; or
(c) The expiration of the court order.
SECTION 3. Section 43-47-29, Mississippi Code of 1972, is amended as follows:
43-47-29. In addition to
the powers granted under the provisions of this chapter, the department is
authorized to petition the court under the provisions of Section * * * 401 or 402 of Section
1 of this act for appointment of a conservator for any vulnerable person.
SECTION 4. Section 45-9-103, Mississippi Code of 1972, is amended as follows:
45-9-103. (1) In this section, "federal prohibited-person information" means information that identifies an individual as:
(a) A person who has been judicially determined by a court as a person with mental illness or person with an intellectual disability under Title 41, Chapter 21, Mississippi Code of 1972, whether ordered for inpatient treatment, outpatient treatment, day treatment, night treatment or home health services treatment;
(b) A person acquitted in a criminal case by reason of insanity or on a ground of intellectual disability, without regard to whether the person is ordered by a court to receive inpatient treatment or residential care under Section 99-13-7;
(c) An adult
individual for whom a court has appointed a guardian or conservator under * * * Article 2, 3 or 4 of
Section 1 of this act based on the determination that the person is
incapable of managing his own person or estate * * *; or
(d) A person determined to be incompetent to stand trial by a court pursuant to Rule 9.06 of the Mississippi Rules of Circuit and County Court Practice.
(2) The Department of Public Safety by rule shall establish a procedure to provide federal prohibited-person information to the Federal Bureau of Investigation for use with the National Instant Criminal Background Check System. Except as otherwise provided by state law, the department may disseminate federal prohibited-person information under this subsection only to the extent necessary to allow the Federal Bureau of Investigation to collect and maintain a list of persons who are prohibited under federal law from engaging in certain activities with respect to a firearm.
(3) The department shall grant access to a person's own federal prohibited-person information to the person who is the subject of the information.
(4) Federal prohibited-person information maintained by the department is confidential information for the use of the department and, except as otherwise provided by this section and other state law, is not a public record and may not be disseminated by the department.
(5) The department by rule shall establish a procedure to correct department records and transmit those corrected records to the Federal Bureau of Investigation when a person provides:
(a) A copy of a
judicial order or finding under Section * * * 318 or 430 of
Section 1 of this act that a person has been restored to reason;
(b) Proof that the person has obtained notice of relief from disabilities under 18 USC, Section 925; or
(c) A copy of a judicial order of relief from a firearms disability under Section 97-37-5(4).
SECTION 5. Section 81-5-62, Mississippi Code of 1972, is amended as follows:
81-5-62. Accounts payable at death may be established under the following conditions:
(a) An account in a bank, including a national bank, may be opened by any person or persons with directions to make such an account payable on the death of the person or persons opening such an account to the named beneficiary or beneficiaries. When an account is so opened, the bank shall pay any monies to the credit of the account from time to time to, or pursuant to the order of, the person or persons opening such an account during his or their lifetime in the same manner as if the account were in the sole name or names of such person or persons. The term "accounts" or "account" as used in this section shall include, but not be limited to, any form of deposit or account, such as a savings account, checking account, time deposit, demand deposit or certificate of deposit, whether negotiable, nonnegotiable or otherwise.
(b) If the named beneficiary or one (1) of the beneficiaries so named is an individual beneficiary and the individual beneficiary or beneficiaries survive the death of the person opening such an account, and the individual beneficiary or all of the individual beneficiaries so named are sixteen (16) years of age or over at the death of the person opening such an account, the bank shall pay the monies to the credit of the account, less all setoffs and charges, to the named individual beneficiary or beneficiaries or upon his or their order, as hereinafter provided, and such payment by the bank shall be valid, notwithstanding any lack of legal age of the named beneficiary or beneficiaries; provided, however, where such an account is opened or subsequently held by more than one (1) person, the death of one (1) of such persons shall not terminate the account and the account shall continue as to the surviving person or persons and the named beneficiary or beneficiaries subject to the provisions of paragraphs (c) through (j) of this section. For purposes of this section, the term "individual beneficiary" shall refer to a living person who is the named beneficiary of a payable on death account.
(c) If the named individual beneficiary or all of the individual beneficiaries so named survive the death of the person or persons opening such an account and are under sixteen (16) years of age at such time, the bank shall pay the monies to the credit of the account, less all setoffs and charges:
(i) When or after the named individual beneficiary becomes sixteen (16) years of age, to the named beneficiary or upon his order; or
(ii) When more than one (1) individual beneficiary is named, the bank shall pay to each individual beneficiary so named his proportionate interest in such account as each severally becomes sixteen (16) years of age; or
(iii) To the legal guardian of the named individual beneficiary, wherever appointed and qualified, or where more than one (1) beneficiary is named, the bank shall pay such individual beneficiary's proportionate interest in such account to his legal guardian wherever and whenever appointed and qualified; or
(iv) * * * If no guardian is
appointed and qualified, payment may be made in accordance with the provisions
of Section * * * 209 or 431 of Section 1 of this act in situations to
which such section or sections are applicable.
(d) Where the death of the person or persons opening such an account terminates the account under the provisions of paragraphs (b) and (c) of this section, and where one or more of the named individual beneficiaries are under sixteen (16) years of age and the remainder of the named individual beneficiaries are sixteen (16) years of age or over, the bank shall pay the monies, less all setoffs and charges, to:
(i) The named individual beneficiaries sixteen (16) years of age or over at the time of termination of such account pursuant to paragraph (b) of this section; and
(ii) The named individual beneficiaries under sixteen (16) years of age at the time of termination of such account pursuant to paragraph (c) of this section.
(e) If the named beneficiary or one (1) of the beneficiaries so named is a revocable trust, evidenced by a written trust agreement, which trust is still in existence at the death of the person opening such an account, the bank shall pay the monies to the credit of the account, less all setoffs and charges, to the trustee of the named revocable trust or upon his or their order, as hereinafter provided, upon being presented an affidavit by the trustee stating that the name of the trust, the names of the current trustees, and that the trust is still in existence at the time of presentment of the affidavit. Such payment by the bank shall be valid, notwithstanding any lack of actual authority by the trustee, and the bank shall be discharged and released to the same extent as if the bank had dealt with the personal representative of the decedent. Such bank shall not be required to see to the proper application of the monies or evidence thereof or to inquire into the truth of any statement presented in the affidavit by the trustee.
(f) Where such account is opened or subsequently held by more than one (1) person, the bank, in the absence of any written instructions to the contrary which are consented to by the bank, shall accept payments made to such account and may pay any monies to the credit of such account from time to time to, or pursuant to the order of, either or any of such persons during their life or lives in the same manner as if the account were in the sole name of either or any of such persons.
(g) When a person or persons open an account in a bank in the form set forth in paragraph (a) of this section, and makes a payment or payments to such account or causes a payment or payments to be made to such account, it shall be conclusively presumed that such person or persons intend to vest in the named beneficiary or beneficiaries a present beneficial interest in such payment so made and in the monies to the credit of the account from time to time, to the end that, if the named beneficiary or beneficiaries survive the person or persons opening such an account, all the right and title of the person or persons opening such an account in and to the monies to the credit of the account at the death of such person or persons, less all setoffs and charges, shall, at such death, vest solely and indefeasibly in the named beneficiary or beneficiaries subject to the conditions and limitations of paragraphs (b) through (j) of this section.
(h) If the named individual beneficiary predeceases the person opening such an account, or if the named beneficiary is a revocable trust that is terminated, the present beneficial interest presumed to be vested in the named beneficiary pursuant to paragraph (g) of this section shall terminate at the death of the named individual beneficiary or upon the termination of the revocable trust named as a beneficiary. In such case, the personal representatives of the named individual beneficiary, the beneficiaries of the revocable trust, and all others claiming through or under the named beneficiary, shall have no right in or title to the monies to the credit of the account, and the bank shall pay such monies, less all setoffs and charges, to the person opening such an account or pursuant to his order in the same manner as if the account were in the sole name of the person opening such an account; provided, however, where such an account names more than one (1) beneficiary, the death of one (1) of the individual beneficiaries or the termination of a revocable trust beneficiary so named shall not terminate the account and the account shall continue as to the surviving beneficiary or beneficiaries subject to the provisions of paragraphs (b) through (j) of this section.
(i) A bank which makes any payment pursuant to paragraphs (b) through (h) of this section, prior to service upon the bank of an order of court restraining such payment, shall, to the extent of each payment so made, be released from all claims of the person or persons opening such an account, the named beneficiary or beneficiaries, their legal representatives, and all others claiming through or under them.
(j) When an account is opened in a form described in paragraph (a) of this section, the right of the named beneficiary or beneficiaries to be vested with sole and indefeasible title to the monies to the credit of the account on the death of the person or persons opening such an account shall not be denied, abridged or in anyway affected because such right has not been created by a writing executed in accordance with the law of this state prescribing the requirements to effect a valid testamentary disposition of property.
SECTION 6. Section 81-12-145, Mississippi Code of 1972, is amended as follows:
81-12-145. Accounts payable at death may be established under the following conditions:
(a) An account in an association may be opened by any person or persons with directions to make such an account payable on the death of the person or persons opening such an account to the named beneficiary or beneficiaries. When an account is so opened, the association shall pay any monies to the credit of the account from time to time to, or pursuant to the order of the person or persons opening such an account during his or their lifetime in the same manner as if the account were in the sole name or names of such person or persons.
(b) If the named beneficiary or one (1) of the beneficiaries so named survive the death of the person opening such an account and the beneficiary or all of the beneficiaries so named are sixteen (16) years of age or over at the death of the person opening such an account, the association shall pay the monies to the credit of the account, less all proper setoffs and charges, to the named beneficiary or beneficiaries or upon his or their order, as hereinafter provided, and such payment by the association shall be valid, notwithstanding any lack of legal age of the named beneficiary or beneficiaries; provided, however, where such an account is opened or subsequently held by more than one (1) person, the death of one (1) of such persons shall not terminate the account and the account shall continue as to the surviving person or persons and the named beneficiary or beneficiaries subject to the provisions of subsections (c) through (i) of this section.
(c) If the named beneficiary or all of the beneficiaries so named survive the death of the person or persons opening such an account and are under sixteen (16) years of age at such time, the association shall pay the monies to the credit of the account, less all proper setoffs and charges:
(i) When or after the named beneficiary becomes sixteen (16) years of age, to the named beneficiary or upon his order; or
(ii) When more than one (1) beneficiary is named, the association shall pay to each beneficiary so named his proportionate interest in such account as each severally becomes sixteen (16) years of age; or
(iii) To the legal guardian of the named beneficiary, wherever appointed and qualified, or where more than one (1) beneficiary is named, the association shall pay such beneficiary's proportionate interest in such account to his legal guardian wherever and whenever appointed and qualified; or
(iv) * * * If no guardian is
appointed and qualified, payment may be made in accordance with the provisions
of Section * * * 209 or 431 of Section 1 of this act in situations to
which such section or sections are applicable.
(d) Where the death of
the person or persons opening such an account terminates the account under the
provisions of * * * paragraphs (b) and (c) of this section and where
one or more of the named beneficiaries are under sixteen (16) years of age and
the remainder of the named beneficiaries are sixteen (16) years of age or over,
the association shall pay the monies to the credit of the trust, less all
proper setoffs and charges, to:
(i) The named
beneficiaries sixteen (16) years of age or over at the time of termination of
said account pursuant to * * * subsection paragraph (b) of this section, and
(ii) The named
beneficiaries under sixteen (16) years of age at the time of termination of
said account pursuant to * * * subsection paragraph (c) of this section.
(e) Where such account is opened or subsequently held by more than one (1) person, the association, in the absence of any written instructions to the contrary, consented to by the association, shall accept payments made to such account and may pay any monies to the credit of such account from time to time to, or pursuant to the order of, either or any of said persons during their life or lives in the same manner as if the account were in the sole name of either or any of such persons.
(f) When a person or
persons opens an account in an association, in the form set forth in * * * paragraph (a) of this
section, and makes a payment or payments to such account, or causes a payment
or payments to be made to such account, such person or persons shall be
conclusively presumed to intend to vest in the named beneficiary or
beneficiaries a present beneficial interest in such payment so made, and in the
monies to the credit of the account from time to time, to the end that, if the
named beneficiary or beneficiaries survive the person or persons opening such
an account, all the right and title of the person or persons opening such an
account in and to the monies to the credit of the account at the death of such
person or persons, less all proper setoffs and charges, shall, at such death,
vest solely and indefeasibly in the named beneficiary or beneficiaries subject
to the conditions and limitations of * * * paragraphs (c) through (i)
of this section.
(g) If the named
beneficiary predeceases the person opening such an account, the present
beneficial interest presumed to be vested in the named beneficiary pursuant to * * * paragraph (f) of this
section shall terminate at the death of the named beneficiary. In such case,
the personal representatives of the named beneficiary, and all others claiming
through or under the named beneficiary, shall have no right in or title to the
monies to the credit of the account, and the association shall pay such monies,
less all proper setoffs and charges, to the person opening such an account, or
pursuant to his order, in the same manner as if the account were in the sole
name of the person opening such an account; provided, however, where such an
account names more than one (1) beneficiary, the death of one (1) of the
beneficiaries so named shall not terminate the account and the account shall
continue as to the surviving beneficiary or beneficiaries subject to the
provisions of * * * paragraphs (c) through (i) of this section.
(h) An association
which makes any payment pursuant to * * * paragraphs (c) through (g)
of this section, prior to service upon the association or an order of court
restraining such payment, shall, to the extent of each payment so made, be
released from all claims of the person or persons opening such an account, the
named beneficiary or beneficiaries, their legal representatives, and all others
claiming through or under them.
(i) When an account is
opened in a form described in * * * paragraph (a) of this
section, the right of the named beneficiary or beneficiaries to be vested with
sole and indefeasible title to the monies to the credit of the account on the
death of the person or persons opening such an account shall not be denied,
abridged or in anywise affected because such right has not been created by a
writing executed in accordance with the law of this state prescribing the
requirements to effect a valid testamentary disposition of property.
SECTION 7. Section 81-14-363, Mississippi Code of 1972, is amended as follows:
81-14-363. (1) An account in a savings bank may be opened by any person or persons with directions to make such account payable upon his or their death to the named beneficiary or beneficiaries. When an account is so opened, the savings bank shall pay any money to the person or persons opening such account during his or their lifetime in the same manner as if the account were in the sole name or names of such person or persons.
(2) If the named beneficiary or one (1) of the named beneficiaries survive the death of the person opening such an account and the beneficiary or all of the beneficiaries so named are sixteen (16) years of age or over at the death of such person, the savings bank shall pay the money to the credit of the account, less all proper setoffs and charges, to the named beneficiary or beneficiaries or upon his or their order, as hereinafter provided. Such payment by the savings bank shall be valid, notwithstanding any lack of legal age of the named beneficiary or beneficiaries. However, where such an account is opened or subsequently held by more than one (1) person, the death of one (1) of such persons shall not terminate the account and the account shall continue as to the surviving person or persons and the named beneficiary or beneficiaries subject to the provisions of subsection (3).
(3) If the named beneficiary or all of the named beneficiaries survive the death of the person or persons opening such an account and are under sixteen (16) years of age at such time, the savings bank shall pay the money to the credit of the account, less all proper setoffs and charges:
(a) When or after the named beneficiary becomes sixteen (16) years of age, to the named beneficiary or upon his order; or
(b) When more than one (1) beneficiary is named, the savings bank shall pay to each beneficiary so named his proportionate interest in such account as each severally becomes sixteen (16) years of age; or
(c) To the legal guardian of the named beneficiary, wherever appointed and qualified, or where more than one (1) beneficiary is named, the savings bank shall pay such beneficiary's proportionate interest in such account to his legal guardian wherever and whenever appointed and qualified; or
(d) * * * If no guardian is
appointed and qualified, payment may be made in accordance with the provisions
of Section * * * 209 or 431 of Section 1 of
this act in situations to which such sections are applicable.
(4) Where the death of the person or persons opening such an account terminates the account under the provisions of subsections (2) and (3) of this section and where one or more of the named beneficiaries are under sixteen (16) years of age and the remainder of the named beneficiaries are sixteen (16) years of age or over, the savings bank shall pay the money to the credit of the trust, less all proper setoffs and charges, to:
(a) The named beneficiaries sixteen (16) years of age or over at the time of termination of said account pursuant to subsection (2) of this section; and
(b) The named beneficiaries under sixteen (16) years of age at the time of termination of said account pursuant to subsection (3) of this section.
(5) Where such account is opened or subsequently held by more than one (1) person, the savings bank in the absence of any written instructions to the contrary, consented to by the savings bank, shall accept payments made to such account and may pay any money to the credit of such account from time to time to, or pursuant to the order of, either or any of such persons during their life or lives in the same manner as if the account were in the sole name of either of such persons.
(6) When a person or persons opens an account in a savings bank in the form set forth in subsection (1) of this section, and makes a payment or payments to such account, or causes a payment or payments to be made to such account, such person or persons shall be conclusively presumed to intend to vest in the named beneficiary or beneficiaries a present beneficial interest in such payments made, and in the money to the credit of the account from time to time, to the end that, if the named beneficiary or beneficiaries survive the person or persons opening such an account, all the right and title of the person or persons opening such an account in and to the money to the credit of the account at the death of such person or persons, less all proper setoffs and charges, shall at such death, vest solely and indefeasibly in the named beneficiary or beneficiaries subject to the conditions and limitations of subsection (3).
(7) If the named beneficiary predeceases the person opening such an account, the present beneficial interest presumed to be vested in the named beneficiary pursuant to subsection (6) of this section shall terminate at the death of the named beneficiary. In such case, the personal representatives of the named beneficiary, and all others claiming through or under the named beneficiary, shall have no right in or title to the money to the credit of the account, and the savings bank shall pay such money, less all proper setoffs and charges, to the person opening such an account, or pursuant to his order, in the same manner as if the account were in the sole name of the person opening such an account; provided, however, where such an account names more than one (1) beneficiary, the death of one (1) of the beneficiaries so named shall not terminate the account and the account shall continue as to the surviving beneficiary or beneficiaries subject to the provisions of subsection (3) of this section.
(8) A savings bank which makes any payment pursuant to subsection (3) of this section, prior to service upon the savings bank of an order of court restraining such payment shall, to the extent of each payment so made, be released from all claims of the person or persons opening such an account, the named beneficiary or beneficiaries, their legal representatives, and all others claiming through or under them.
(9) When an account is opened in a form described in subsection (1) of this section, the right of the named beneficiary or beneficiaries to be vested with sole and indefeasible title to the money to the credit of the account on the death of the person or persons opening such an account shall not be denied, abridged or in anyway affected because such right has not been created by a writing executed in accordance with the law of this state prescribing the requirements to effect a valid testamentary disposition of property.
SECTION 8. Section 91-8-103, Mississippi Code of 1972, is amended as follows:
91-8-103. In this chapter:
(1) "Action," with respect to an act of a trustee, includes a failure to act.
(2) "Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, as in effect on July 1, 2014, or as later amended.
(3) "Beneficial interest" means a distribution interest or a remainder interest; provided, however, a beneficial interest specifically excludes a power of appointment or a power reserved by a settlor.
(4) "Beneficiary" means a person that:
(A) Has a present or future beneficial interest in a trust, vested or contingent; or
(B) In a capacity other than that of trustee, holds a power of appointment over trust property.
(5) "Beneficiary surrogate" means a person, including a trust protector or trust advisor, other than a trustee, designated by the settlor in the trust instrument or in a writing delivered to the trustee, or designated in a writing delivered to the trustee by a trust protector or trust advisor with power under the terms of the trust instrument to receive notices, information, and reports otherwise required to be provided to a beneficiary under Section 91-8-813(a) and (b), or to represent a beneficiary under Section 91-8-303(8).
(6) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in Section 91-8-405(a).
(7)
"Conservator" means a person appointed by the court to administer the
estate of a minor or adult individual * * * as defined in Section * * * 102 of Section 1 of
this act.
(8) "Directed trust" means a trust where through the terms of the trust, one or more persons are given the authority to direct or consent to a fiduciary's actual or proposed investment decision, distribution decision, or any other decision of the fiduciary.
(9) "Distribution interest" means:
(A) An interest, other than a remainder interest, held by an eligible distributee or permissible distributee under a trust and may be a current distribution interest or a future distribution interest;
(B) A distribution interest is classified as either a mandatory interest, a support interest or a discretionary interest; and although not the exclusive means to create each such respective distribution interest, absent clear and convincing evidence to the contrary, use of the example language accompanying the following definitions of each such respective distribution interest results in the indicated classification of distribution interest:
(i) A mandatory interest means a distribution interest in which the timing of any distribution must occur within one (1) year from the date the right to the distribution arises and the trustee has no discretion in determining whether a distribution shall be made or the amount of such distribution; example distribution language indicating a mandatory interest includes, but is not limited to:
a. All income shall be distributed to a named beneficiary; or
b. One Hundred Thousand Dollars ($100,000.00) a year shall be distributed to a named beneficiary;
(ii) A support interest means a distribution interest that is not a mandatory interest but still contains mandatory language such as "shall make distributions" and is coupled with a standard capable of judicial interpretation; example distribution language indicating a support interest includes, but is not limited to:
a. The trustee shall make distributions for health, education, maintenance, and support;
b. Notwithstanding the distribution language used, if a trust instrument containing such distribution language specifically provides that the trustee exercise discretion in a reasonable manner with regard to a discretionary interest, then notwithstanding any other provision of this subparagraph defining distribution interests, the distribution interest shall be classified as a support interest;
(iii) A discretionary interest means any interest that is not a mandatory or a support interest and is any distribution interest where a trustee has any discretion to make or withhold a distribution; example distribution language indicating a discretionary interest includes, but is not limited to:
a. The trustee may, in the trustee's sole and absolute discretion, make distributions for health, education, maintenance, and support;
b. The trustee, in the trustee's sole and absolute discretion, shall make distributions for health, education, maintenance, and support;
c. The trustee may make distributions for health, education, maintenance, and support;
d. The trustee shall make distributions for health, education, maintenance, and support; however, the trustee may exclude any of the beneficiaries or may make unequal distributions among them; or
e. The trustee may make distributions for health, education, maintenance, support, comfort, and general welfare;
f. A discretionary interest may also be evidenced by:
1. Permissive distribution language such as "may make distributions";
2. Mandatory distribution language that is negated by the discretionary distribution language contained in the trust such as "the trustee shall make distributions in the trustee's sole and absolute discretion";
g. An interest that includes mandatory distribution language such as "shall" but is subsequently qualified by discretionary distribution language shall be classified as a discretionary interest and not as a support or a mandatory interest;
(C) (i) To the extent a trust contains distribution language indicating the existence of any combination of a mandatory, support and discretionary interest, that combined interest of the trust shall be divided and treated separately as follows:
a. The trust shall be a mandatory interest only to the extent of the mandatory distribution language;
b. The trust shall be a support interest only to the extent of such support distribution language; and
c. The remaining trust property shall be held as a discretionary interest;
(ii) For purposes of this subparagraph (C), a support interest that includes mandatory distribution language such as "shall" but is subsequently qualified by discretionary distribution language, shall be classified as a discretionary interest and not as a support interest.
(10) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.
(11) "Excluded fiduciary" means any trustee, trust advisor, or trust protector to the extent that, under the terms of a trust:
(A) The trustee, trust advisor, or trust protector is excluded from exercising a power, or is relieved of a duty; and
(B) The power or duty is granted or reserved to another person.
(12) "Fiduciary" means:
(A) A trustee, conservator, guardian, agent under any agency agreement or other instrument, an executor, personal representative or administrator of a decedent's estate, or any other party, including a trust advisor or a trust protector, who is acting in a fiduciary capacity for any person, trust, or estate;
(B) For purposes of subparagraph (A), an agency agreement includes, but is not limited to, any agreement under which any delegation is made, either pursuant to Section 91-8-807 or by anyone holding a power or duty pursuant to Article 12;
(C) For purposes of the definition of fiduciary in Section 91-8-103, fiduciary does not mean any person who is an excluded fiduciary as such is defined in Section 91-8-103.
(13)
"Guardian" means a person appointed by the court * * *
to make decisions regarding the support, care, education, health, and welfare
of a minor or adult individual as defined in Section 102 of Section 1 of
this act. The term does not include a guardian ad litem.
(14) "Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust.
(15) "Internal Revenue Code" means the Internal Revenue Code of 1986, as in effect on July 1, 2014, or as later amended.
(16) "Jurisdiction," with respect to a geographic area, includes a state or country.
(17) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(18) "Power of appointment" means:
(A) An inter vivos or testamentary power to direct the disposition of trust property, other than a distribution decision made by a trustee or other fiduciary to a beneficiary;
(B) Powers of appointment are held by the person to whom such power has been given, and not by a settlor in that person's capacity as settlor.
(19) "Power of withdrawal" means a presently exercisable general power of appointment other than a power: (A) exercisable by a trustee and limited by an ascertainable standard; or (B) exercisable by another person only upon consent of the trustee or a person holding an adverse interest.
(20) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.
(21) "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined:
(A) Is a distributee or permissible distributee of trust income or principal;
(B) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) terminated on that date without causing the trust to terminate; or
(C) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
(22) "Remainder interest" means an interest under which a trust beneficiary will receive property held by a trust outright at some time during the future.
(23) "Reserved power" means a power held by a settlor.
(24) "Revocable," as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.
(25) "Settlor" means a person, including a testator, who creates, or contributes property to, a trust. If more than one (1) person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.
(26) "Spendthrift provision" means a term of a trust which restrains both voluntary and involuntary transfer of a beneficiary's interest.
(27) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.
(28) "Successors in interest" means the beneficiaries under the settlor's will, if the settlor has a will, or in the absence of an effective will provision, the settlor's heirs at law.
(29) "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.
(30) "Trust advisor" means any person described in Section 91-8-1201(a).
(31) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto.
(32) "Trustee" includes an original, additional, and successor trustee, and a cotrustee.
(33) "Trust protector" means any person described in Section 91-8-1201(a).
SECTION 9. Section 93-14-102, Mississippi Code of 1972, is amended as follows:
93-14-102. In this chapter:
(1) "Adult"
means an individual who has attained * * * twenty-one (21) years of
age.
(2)
"Conservator" means a person appointed by the court to administer the
property of an adult, including a person appointed under * * * Article
4 of Section 1 of this act.
(3)
"Guardian" means a person appointed by the court to make decisions
regarding the person of an adult, including a person appointed under * * * Article 2 or 3 of Section 1 of this
act.
(4) "Guardianship order" means an order appointing a guardian.
(5) "Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.
(6) "Incapacitated person" means an adult for whom a guardian has been appointed.
(7) "Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding.
(8) "Person," except in the term incapacitated person or protected person, means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(9) "Protected person" means an adult for whom a protective order has been issued.
(10) "Protective order" means an order appointing a conservator or other order related to management of an adult's property.
(11) "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
(12) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(13) "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought.
(14) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
SECTION 10. Section 93-14-302, Mississippi Code of 1972, is amended as follows:
93-14-302. (a) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to Section 93-14-301, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.
(b) Notice of a petition under subsection (a) must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or conservator or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state.
(c) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a).
(d) The court shall issue an order provisionally granting a petition filed under subsection (a) unless:
(1) An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
(2) The guardian or conservator is ineligible for appointment in this state.
(e) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to Section 93-14-301 transferring the proceeding to this state.
(f) Not later than ninety (90) days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state.
(g) In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator.
(h) The
denial by a court of this state of a petition to accept a guardianship or
conservatorship transferred from another state does not affect the ability of
the guardian or conservator to seek appointment as guardian or conservator in
this state under * * * Article
2, 3 or 4 of Section 1 of this act or
under Section 35-5-1 et seq., if the court
has jurisdiction to make an appointment other than by reason of the provisional
order of transfer.
SECTION 11. Sections 93-13-3, 93-13-5, 93-13-7, 93-13-9, 93-13-11, 93-13-13, 93-13-15, 9-13-17, 93-13-19, 93-13-21, 93-13-23, 93-13-25, 93-13-27, 93-13-29, 93-13-31, 93-13-33, 93-13-35, 93-13-37, 93-13-38, 93-13-39, 93-13-41, 93-13-43, 93-13-45, 93-13-47, 93-13-49, 93-13-51, 93-13-53, 93-13-55, 93-13-57, 93-13-59, 93-13-61, 93-13-63, 93-13-65, 93-13-67, 93-13-69, 93-13-71, 93-13-73, 93-13-75, 93-13-77 and 93-13-79, Mississippi Code of 1972, dealing with wards generally, are repealed.
SECTION 12. Section 93-13-111, Mississippi Code of 1972, dealing with wards in need of mental treatment, is repealed.
SECTION 13. Sections 93-13-121, 93-13-123, 93-13-125, 93-13-127, 93-13-128, 93-13-129, 93-13-131, 93-13-133 and 93-13-135, Mississippi Code of 1972, dealing with the appointment of guardians for incompetent adults, are repealed.
SECTION 14. Section 93-13-151, Mississippi Code of 1972, dealing with the procedure following restoration of reason, is repealed.
SECTION 15. Section 93-13-161, Mississippi Code of 1972, dealing with the appointment of a guardian for the estate of a person in the armed forces listed as missing, is repealed.
SECTION 16. Sections 93-13-181, 93-13-183, 93-13-185 and 93-13-187, Mississippi Code of 1972, dealing with nonresident guardians, is repealed.
SECTION 17. Sections 93-13-211, 93-13-213, 93-13-215, 93-13-217 and 93-13-219, Mississippi Code of 1972, dealing with small transactions performed without guardianship, are repealed.
SECTION 18. Sections 93-13-251, 93-13-253, 93-13-255, 93-13-257, 93-13-259, 93-13-261, 93-13-263, 93-13-265 and 93-13-267, Mississippi Code of 1972, dealing with conservators, are repealed.
SECTION 19. Section 93-13-281, Mississippi Code of 1972, dealing with the joinder of parties in suits involving wards, is repealed.
SECTION 20. The editor is directed to retitle Title 93, Chapter 13, Mississippi Code of 1972, appropriately.
SECTION 21. Except as otherwise provided in this chapter:
(1) This chapter applies to all guardianship and conservatorship proceedings commenced on or after January 1, 2020;
(2) This chapter applies to all guardianship and conservatorship proceedings commenced before January 1, 2020, unless the court finds that 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, in which case the particular provision of this chapter does not apply and the superseded law applies; and
(3) An act done before January 1, 2020 is not affected by this act.
SECTION 22. This act shall take effect and be in force from and after January 1, 2020.