MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary A
By: Representatives Cockerham, Mickens
AN ACT TO AMEND SECTION 93-20-102, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS PERTAINING TO GUARDIANSHIPS AND CONSERVATORSHIPS; TO AMEND SECTION 93-20-104, MISSISSIPPI CODE OF 1972, TO CLARIFY JURISDICTION UNDER THE ACT WHEN PROCEEDINGS MAY BE INSTITUTED OR ONGOING IN A DIFFERENT COURT; TO AMEND SECTION 93-20-105, MISSISSIPPI CODE OF 1972, TO CLARIFY THE REQUIRED GIVING OF NOTICE AND SUMMONS UNDER THE ACT; TO AMEND SECTIONS 93-20-107 AND 93-20-108, MISSISSIPPI CODE OF 1972, TO AUTHORIZE COMBINING PROCEEDINGS AND LETTERS OF GUARDIANSHIP AND CONSERVATORSHIP WHEN THE GUARDIAN AND CONSERVATOR ARE THE SAME PERSON AND TO REQUIRE SUBSCRIPTION TO AN OATH BY A FIDUCIARY; TO AMEND SECTION 93-20-113, MISSISSIPPI CODE OF 1972, TO CLARIFY REQUIREMENTS REGARDING NOTICE AND SUMMONS; TO AMEND SECTION 93-20-116, MISSISSIPPI CODE OF 1972, TO CONFORM INTERNAL REFERENCES; TO AMEND SECTION 93-20-118, MISSISSIPPI CODE OF 1972, TO INCLUDE PAYMENT OF ATTORNEY'S FEES IN CASES WHERE A PETITION IS FILED IN BAD FAITH; TO AMEND SECTION 93-20-125, MISSISSIPPI CODE OF 1972, TO REVISE TRANSITION AND CONFLICT OF LAW PROVISIONS; TO AMEND SECTION 93-20-201, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COURT TO DISPENSE WITH LEGAL REPRESENTATION IF THAT WOULD IMPOSE AN UNDUE BURDEN ON THE WARD'S ESTATE; TO AMEND SECTION 93-20-202, MISSISSIPPI CODE OF 1972, TO REVISE THE PARTIES GIVEN NOTICE OF A PETITION FOR APPOINTMENT OF A GUARDIAN OF A MINOR; TO AMEND SECTION 93-20-203, MISSISSIPPI CODE OF 1972, TO REVISE NOTICE AND SUMMONS; TO AMEND SECTION 93-20-206, MISSISSIPPI CODE OF 1972, TO CLARIFY THE HEARING REQUIRED BEFORE APPOINTMENT OF A GUARDIAN FOR A MINOR AND NOTICE OF SUBSEQUENT PROCEEDINGS; TO AMEND SECTION 93-20-207, MISSISSIPPI CODE OF 1972, TO CLARIFY NOTICE AND SUMMONS; TO AMEND SECTION 93-20-301, MISSISSIPPI CODE OF 1972, TO CLARIFY THE POWERS GRANTED TO A GUARDIAN OF AN ADULT; TO AMEND SECTION 93-20-302, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COURT TO DISPENSE WITH LEGAL REPRESENTATION IF THAT WOULD IMPOSE AN UNDUE BURDEN ON THE WARD'S ESTATE; TO AMEND SECTION 93-20-303, MISSISSIPPI CODE OF 1972, TO CLARIFY THE HEARING REQUIRED BEFORE APPOINTMENT OF A GUARDIAN FOR AN ADULT AND NOTICE OF SUBSEQUENT PROCEEDINGS; TO AMEND SECTION 93-20-306, MISSISSIPPI CODE OF 1972, TO CLARIFY THE RESPONDENT'S RIGHTS AT A HEARING ON A PETITION TO APPOINT A GUARDIAN FOR AN ADULT; TO AMEND SECTION 93-20-309, MISSISSIPPI CODE OF 1972, TO CLARIFY THE NECESSITY OF SUMMONS GIVEN TO AN ADULT RESPONDENT; TO AMEND SECTION 93-20-310, MISSISSIPPI CODE OF 1972, TO CONFORM INTERNAL REFERENCES; TO AMEND SECTION 93-20-311, MISSISSIPPI CODE OF 1972, TO CLARIFY THE NECESSITY OF SUMMONS ISSUED FOR THE CONTINUATION OF AN EMERGENCY GUARDIANSHIP OF AN ADULT; TO AMEND SECTION 93-20-403, MISSISSIPPI CODE OF 1972, TO CLARIFY THE HEARING REQUIRED BEFORE APPOINTMENT OF A CONSERVATOR AND NOTICE OF SUBSEQUENT PROCEEDINGS; TO AMEND SECTION 93-20-405, MISSISSIPPI CODE OF 1972, TO CLARIFY THE APPOINTMENT AND ROLE OF A GUARDIAN AD LITEM; TO AMEND SECTION 93-20-407, MISSISSIPPI CODE OF 1972, TO CLARIFY WHEN PROFESSIONAL EXAMINATION OF A MINOR IS REQUIRED BEFORE APPOINTMENT OF A CONSERVATOR; TO AMEND SECTION 93-20-408, MISSISSIPPI CODE OF 1972, TO CLARIFY THE RESPONDENT'S RIGHTS AT A HEARING ON A PETITION TO APPOINT A CONSERVATOR; TO AMEND SECTION 93-20-411, MISSISSIPPI CODE OF 1972, TO CLARIFY WHEN COSTS ARE NOT TO BE ASSESSED TO THE PETITIONER AND TO MAKE A TECHNICAL CORRECTION; TO AMEND SECTION 93-20-413, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT SUMMONS MUST ISSUE FOR THE CONTINUATION OF A CONSERVATORSHIP; TO AMEND SECTION 93-20-431, MISSISSIPPI CODE OF 1972, RELATING TO PAYMENT OF SETTLEMENT PROCEEDS WITHOUT APPOINTMENT OF A CONSERVATOR; TO REPEAL AS DUPLICATIVE SECTIONS 93-14-401, 92-14-402 AND 93-14-403, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE ARTICLE 4 OF THE UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT AND DEAL WITH THE REGISTRATION AND RECOGNITION OF FOREIGN ORDERS OF GUARDIANSHIP AND CONSERVATORSHIP; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-20-102, Mississippi Code of 1972, is amended as follows:
93-20-102. In this chapter:
(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 chapter.
(e) "Full conservatorship" means a conservatorship that grants the conservator all powers available under this chapter.
(f) "Full guardianship" means a guardianship that grants the guardian all powers available under this chapter.
(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 chapter, 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 chapter or otherwise restricts the powers of the guardian.
(m) "Minor" means an unemancipated individual under twenty-one (21) years of age.
(n) "Notice" means any notice as provided by Rule 5 of the Mississippi Rules of Civil Procedure.
( * * *o) "Parent" does not include
an individual whose parental rights have been terminated.
( * * *p) "Person" means an
individual, estate, business or nonprofit entity, public corporation,
government or governmental subdivision, agency, or instrumentality, or other
legal entity.
( * * *q) "Property" includes
tangible and intangible property.
( * * *r) "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.
( * * *s) "Respondent" means an
individual for whom appointment of a guardian or conservator is sought.
( * * *t) "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.
( * * *u) "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.
(v) "Summons" means any properly issued summons as provided by the Mississippi Rules of Civil Procedure.
( * * *w) "Ward" means an adult or
minor for whom a guardian or conservator has been appointed under this chapter.
SECTION 2. Section 93-20-104, Mississippi Code of 1972, is amended as follows:
(2)
After * * *
a petition is filed 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.
(4) This chapter does not apply to a durable legal relative guardianship to facilitate child placement that may be created by a youth court under Section 43-21-609.
SECTION 3. Section 93-20-105, Mississippi Code of 1972, is amended as follows:
93-20-105. (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 93-20-124.
(5) Summons giving 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 summons or notice if the procedures for appointment of a guardian or conservator under this chapter 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.
SECTION 4. Section 93-20-107, Mississippi Code of 1972, is amended as follows:
(2) * * * Proceedings for a guardianship * * * and conservatorship for the same individual * * * may be commenced in a single
proceeding, and if separate proceedings are commenced or pending in the
same court, the proceedings may be consolidated.
(3) If the court finds that a provision of this chapter conflicts with a provision of Title 35, Chapter 5, Mississippi Code of 1972 (Uniform Veterans' Guardianship Law), the court must resolve the conflict in the best interest of the ward.
SECTION 5. Section 93-20-108, Mississippi Code of 1972, is amended as follows:
93-20-108. (1) At or before the time of appointment, the guardian or conservator must take and subscribe an oath faithfully to discharge the duties of guardian or conservator of the ward according to law.
( * * *2) 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.
( * * *3) 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.
( * * *4) 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 with proof of service on the guardian or conservator,
the ward, and any other person the court determines.
( * * *5) 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.
(6) Letters of guardianship and conservatorship may be combined in one (1) document if the guardian and conservator are the same person.
SECTION 6. Section 93-20-113, Mississippi Code of 1972, is amended as follows:
(2) Proof of notice given of a hearing under this chapter must be made before or at the hearing and filed in the proceeding.
(3) Notice given of a hearing under this chapter 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 7. Section 93-20-116, Mississippi Code of 1972, is amended as follows:
93-20-116. (1) A person may file with the court a request for notice under this chapter if the person is:
(a)
Not otherwise entitled to notice under Section 93-20-203, Section 93-20-303 * * * or Section 93-20-403 * * *; 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 8. Section 93-20-118, Mississippi Code of 1972, is amended as follows:
93-20-118. (1) An attorney for a respondent in a proceeding under this chapter 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 chapter and determines the petition was filed in bad faith, the court may assess any costs and attorney's fees the court deems appropriate.
SECTION 9. Section 93-20-125, Mississippi Code of 1972, is amended as follows:
93-20-125. Except as otherwise provided in this chapter:
(a) This chapter applies to all guardianship and conservatorship proceedings commenced on or after January 1, 2020;
(b) This chapter
applies to all guardianship and conservatorship proceedings commenced before
January 1, 2020, unless the court * * *, in its
discretion, determines that the superseded law * * * should apply. The requirements of
this chapter providing for increased court oversight and periodic monitoring do
not require that a new proceeding be commenced; and
(c) An act done before January 1, 2020, is not affected by this chapter.
SECTION 10. Section 93-20-201, Mississippi Code of 1972, is amended as follows:
(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.
(3) The guardian for a minor is not required to retain an attorney of record for the guardianship if the courts finds that this would impose an undue burden on the ward's estate.
SECTION 11. Section 93-20-202, Mississippi Code of 1972, is amended as follows:
(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 article, together with a copy of the petition, must be given to the * * * ward, the guardian, the
parents of the ward, and any other person the court determines.
SECTION 12. Section 93-20-203, Mississippi Code of 1972, is amended as follows:
93-20-203.
(1) If a petition is filed under Section 93-20-202, the court must set a date,
time and place for a hearing, and the petitioner must * * * cause summons to be issued and served
not less than seven (7) days * * * before 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; and
* * *
( * * *c) 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 * * *.
* * *
(2) For any other person the court determines should know of the proceedings, notice must be provided under Rule 5 of the Mississippi Rules of Civil Procedure.
( * * *3) A petition under this article 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."
( * * *4) If a petitioner is unable to serve * * * summons under subsection (1)(a),
the court may appoint a guardian ad litem for the minor for the purpose of
receiving * * *
summons.
SECTION 13. Section 93-20-206, Mississippi Code of 1972, is amended as follows:
93-20-206. (1) After a
hearing * * * the court may appoint a guardian for a minor,
dismiss the proceeding, or take other appropriate action consistent with this
chapter or law of this state other than this chapter.
(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 14. Section 93-20-207, Mississippi Code of 1972, is amended as follows:
93-20-207. (1) On a petition by a person interested in a minor's welfare or a petition filed under Section 93-20-202, 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), summons giving 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 93-20-204;
(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) and summons must be issued on continuation of the guardianship. 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 93-20-201.
(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 15. Section 93-20-301, Mississippi Code of 1972, is amended as follows:
93-20-301. (1) 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 * * * 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 16. Section 93-20-302, Mississippi Code of 1972, is amended as follows:
93-20-302. (1) A proceeding under this article may be instituted by the chancellor or clerk of the chancery court, any relative or friend of the adult, or any other interested party, including the adult for whom the order is sought, by filing a sworn petition in the chancery court of the county of the residence of the adult, setting forth that the adult is alleged to be in need of a guardianship.
(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 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) The guardian for an adult is not required to retain an attorney of record for the guardianship if the court finds that this would impose an undue burden on the ward's estate.
SECTION 17. Section 93-20-303, Mississippi Code of 1972, is amended as follows:
93-20-303. Notice of
hearing for appointment of guardian for adult; notice of hearing after
appointment of guardian. (1) On receipt of a petition under Section
93-20-302 for appointment of a guardian for a respondent who is an adult, the
court must set a date, time and place for a hearing, and * * * unless the court finds that the
adult for whom the guardian is to be appointed is competent and joins in the
petition, the petitioner must cause summons to be served not less than
seven (7) * * * days before the hearing, together
with a copy of the petition, on the adult for whom the guardian is to be
appointed * * *. The court may, for good cause shown, direct that a
shorter notice be given.
* * *
( * * *2) Unless the court finds that the
adult for whom the guardian is to be appointed is competent and joins in the petition, * * * summons must also * * * issue to:
(a) Any conservator appointed to the respondent;
* * *
(b) At least one
(1) adult relative of the respondent who resides in Mississippi from the
following group in the listed order of preference: * * * spouse, children, parents * * *, siblings * * *;
but if none of those can be found * * *:
( * * *i) To one (1) adult relative
of the * * * respondent who is not
the petitioner and who resides in Mississippi if that relative is within the
third degree of kinship.
(ii) If no
relative within the third degree of kinship to the * * *
respondent is found residing in the State of Mississippi, the court
shall either designate some other appropriate person to receive the * * * summons
or appoint a guardian ad litem to receive * * * the
summons.
(3) In a proceeding on a petition under this article, notice of the hearing must also be given to any other person the court determines is entitled to notice. Failure to give notice does not preclude the court from appointing a guardian.
(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 * * * a
summons.
(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 * * *
ward, the guardian, and any other person the court determines.
SECTION 18. Section 93-20-306, Mississippi Code of 1972, is amended as follows:
93-20-306. (1) At a
hearing held under * * * this article, 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 * * * this article.
(3) A hearing under * * * this article
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 * * * this article.
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 19. Section 93-20-309, Mississippi Code of 1972, is amended as follows:
93-20-309. (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 * * * summons notifying the respondent
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 93-20-310(2);
(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 93-20-314; or
(v) Substantially all powers of the guardian;
(d) A copy of the guardian's plan under Section 93-20-315 and the guardian's well-being report under Section 93-20-316;
(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 93-20-303 * * * 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 20. Section 93-20-310, Mississippi Code of 1972, is amended as follows:
93-20-310. (1) A guardian appointed under Section 93-20-309 must give the ward and all other persons given notice under Section 93-20-309(4) 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 93-20-309, the guardian
must request from the court a statement of the rights of the ward and must give
the statement to the ward and any other person entitled to notice under Section
93-20-303 * * *
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 93-20-315 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 93-20-315 and the guardian's well-being report under Section 93-20-316; and
(h) Object to the guardian's plan or report.
SECTION 21. Section 93-20-311, Mississippi Code of 1972, is amended as follows:
93-20-311. (1) On a petition by a person interested in an adult's welfare or a petition filed under Section 93-20-302, 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 93-20-301 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. Summons must be issued on continuation of the guardianship as required in subsection (4).
(3) Except as otherwise provided in subsection (4), summons giving 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) (a) 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:
( * * *i) The respondent;
( * * *ii) The respondent's attorney;
( * * *iii) Any other person the court
determines; and
( * * *b) The court must 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 93-20-301.
(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 22. Section 93-20-403, Mississippi Code of 1972, is amended as follows:
93-20-403. Notice and
hearing for appointment of conservator; notice of hearing after appointment
of conservator. (1) On receipt of a petition under Section 93-20-402
for appointment of a conservator for a respondent, the court must set a date,
time, and place for a hearing on the petition, and * * * unless the court finds that the
respondent for whom the conservator is to be appointed is competent and joins
in the petition, the petitioner must cause summons to be served not
less than seven (7) * * * days before the hearing, together
with a copy of the petition, on the person for whom the conservator is to
be appointed * * *. The court may, for good cause shown, direct that a
shorter notice be given.
* * *
( * * *2) Unless the court finds that the
respondent for whom the conservator is to be appointed is competent and joins
in the petition, the * * * summons must also * * *
issue to * * *:
(a) Any guardian appointed to the respondent; and
( * * *b) * * *
At least one (1) adult relative of the respondent who resides in Mississippi
from the following group in the listed order of preference: spouse,
children, parents * * *,
siblings * * *; but if none of
those can be found * * *:
( * * *i) To one (1) adult relative
of the * * * respondent and who
is not the petitioner and who resides in Mississippi if that relative is within
the third degree of kinship.
(ii) If no
relative within the third degree of kinship to the * * *conservator
respondent is found residing in the State of Mississippi, the court must
either designate some other appropriate person to receive the * * * summons or appoint a guardian ad
litem to receive * * * the summons.
(3) In a proceeding under this article, notice of the hearing also must be given to any other person interested in the respondent's welfare the court determines is entitled to notice. Failure to give notice under this subsection does not preclude the court from appointing a guardian.
(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 * * * summons.
(5) Notice of a hearing on
a petition seeking an order under this article that is filed after the
appointment of a conservator, together with a copy of the petition, must be
given to the * * * ward, the conservator, and any other person the
court determines.
SECTION 23. Section 93-20-405, Mississippi Code of 1972, is amended as follows:
93-20-405. 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 * * *;
a judgment of any court is not void or erroneous because of the failure to
have a guardian ad litem.
SECTION 24. Section 93-20-407, Mississippi Code of 1972, is amended as follows:
93-20-407. (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 * * *,
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) * * * does not apply if the respondent
is:
(a) Missing,
detained or unable to return to the United States * * *; or
(b) A minor with no other disability or incapacity. However, a personal examination is required to extend a conservatorship beyond the age of majority.
SECTION 25. Section 93-20-408, Mississippi Code of 1972, is amended as follows:
93-20-408. (1) At a
hearing under * * * this article, 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 * * * this article.
(3) A hearing under * * * this article
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 * * * this article.
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 26. Section 93-20-411, Mississippi Code of 1972, is amended as follows:
93-20-411. (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 * * *
summons notifying the respondent 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 93-20-412(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 93-20-414 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 93-20-419 and the conservator's report under Section 93-20-423;
(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 or are not in the best interest of the ward.
(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.
(8) (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 estate of 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 unless the proceedings were instituted by the court or the chancery clerk.
SECTION 27. Section 93-20-413, Mississippi Code of 1972, is amended as follows:
93-20-413. (1) Upon a petition by a person interested in an individual's welfare or a petition filed under Section 93-20-402, 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 93-20-401 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. Summons must be issued on continuation of the guardianship as required in subsection (4).
(3) Except as otherwise provided in subsection (4), summons giving 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 93-20-401.
(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 28. Section 93-20-431, Mississippi Code of 1972, is amended as follows:
93-20-431. (1) Unless a
person required to transfer * * * a liquidated sum certain under a
banking provision, a contract for payment or under a judgment or decree of a
court, or other property to a minor knows that a conservator for the minor
has been appointed or a proceeding is pending for conservatorship * * *:
(a) The person may transfer a liquidated sum certain or property of certain value not exceeding Twenty-five Thousand Dollars ($25,000.00) in a twelve-month period to:
(i) A person who has care or custody of the minor and with whom the minor resides;
( * * *ii) A guardian for the minor;
( * * *iii) A custodian under the Uniform
Transfers to Minors Act, Section 91-20-1 et seq.; or
( * * *iv) 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
( * * *v) An Achieving a Better Life
Experience (ABLE) account.
(b) The person must seek chancery court approval if the sum of money or value of property that may be due to the ward is not a liquidated sum certain or property of certain value under a banking provision, a contract for payment, or under a judgment, order or decree of a court, and the chancery court before ordering the money paid or personal property delivered must fully investigate the matter and satisfy itself by evidence or otherwise that the proposed sum of money to be paid or property to be delivered because of any claim of the ward whatsoever, whether arising ex delicto or ex contractu, is a fair settlement of the claim of the ward and that it is in the best interest of the ward that the settlement be made or the personal property be delivered to the ward. Upon making that determination, the chancery court may order that the money or personal property be accepted by the ward and paid or delivered by the party owing the money or in possession of the property as authorized by the decree of the court, and compliance with the order shall acquit and release the person so paying or delivering the same. The person who receives the money or property of a ward under the order thereby becomes amenable to the court for the disposition of it for the use and benefit of the ward, but is not required to furnish security therefor absent order of the chancery court.
(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, are governed by 26 U.S.C. Section 529A and the terms of the applicable ABLE plan. The amount of annual contributions is subject to 26 U.S.C. Section 2503(b).
SECTION 29. Sections 93-14-401, 93-14-402 and 93-14-403, Mississippi Code of 1972, which constitute Article 4 of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act and deal with the registration and recognition of foreign orders of guardianship and conservatorship, are repealed.
SECTION 30. This act shall take effect and be in force from and after its passage.