MISSISSIPPI LEGISLATURE
2003 Regular Session
To: Local and Private Legislation; Judiciary A
By: Representative Ishee, Barnett (116th), Creel, Dedeaux, Fredericks, Guice, Janus, Peranich, Simpson
AN ACT TO AUTHORIZE THE BOARD OF SUPERVISORS OF HARRISON COUNTY TO ESTABLISH AN OFFICE OF PUBLIC GUARDIAN FOR THE PURPOSES OF PROVIDING GUARDIANSHIP AND CONSERVATORSHIP SERVICES FOR INCAPACITATED AND VULNERABLE PERSONS, SERVING AS GUARDIAN AD LITEM IN CHANCERY COURT CASES WHENEVER THE APPOINTMENT OF A GUARDIAN AD LITEM IS REQUIRED BY LAW OR IS OTHERWISE NEEDED, AND INITIATING DRUG AND ALCOHOL COMMITMENTS ON BEHALF OF INDIGENT FAMILIES; TO PROVIDE THAT THE PUBLIC GUARDIAN SHALL BE SELECTED BY THE BOARD OF SUPERVISORS BASED UPON RECOMMENDATION FROM AN ADVISORY BOARD APPOINTED BY THE SENIOR CHANCELLOR OF THE EIGHTH CHANCERY COURT DISTRICT; TO AUTHORIZE THE BOARD OF SUPERVISORS TO LEVY A FEE UPON EACH COMPLAINT FILED IN THE CHANCERY COURT OF HARRISON COUNTY FOR THE PURPOSE OF DEFRAYING THE COSTS OF ESTABLISHING AND MAINTAINING THE OFFICE OF PUBLIC GUARDIAN; FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The Legislature recognizes that:
(a) In many instances, private guardianship fails or is inadequate whenever there is no willing, responsible family member, friend, bank, corporation or other person available to serve as guardian for an incapacitated person and whenever such person does not have adequate resources to compensate a private guardian;
(b) Whenever private attorneys are appointed by the court to serve as conservators, guardians or guardians ad litem, these attorneys are subject to the distractions of private practice, resulting in little consistency in the quality of representation they provide; and
(c) Initiating involuntary alcohol and drug commitments without the services of an attorney is difficult and that persons without financial resources to hire an attorney must go without assistance.
(2) By the passage of this act, the Legislature intends to authorize the Board of Supervisors of Harrison County to establish an office of public guardian for the purposes of (a) providing guardianship and conservatorship services for the incapacitated and vulnerable persons of the county; (b) serving as guardian ad litem in chancery court cases whenever the appointment of a guardian ad litem is required by law or is otherwise needed; and (c) initiating drug and alcohol commitments on behalf of indigent families of the county.
SECTION 2. The Board of Supervisors of Harrison County, in its discretion, may create a board to be known as the Public Guardian Advisory Board. If a Public Guardian Advisory Board is created, the board shall consist of eight (8) members of the social services community who are knowledgeable of the needs of incapacitated and vulnerable persons. The members of the board shall be appointed for a term of four (4) years by the senior chancellor for the Eighth Chancery Court District. A member may be reappointed and may serve successive terms on the board.
SECTION 3. (1) If a Public Guardian Advisory Board is created under Section 2 of this act, the Board of Supervisors of Harrison County, upon recommendation of the senior chancellor for the Eighth Chancery Court District and the Public Guardian Advisory Board, shall appoint a person to serve as public guardian for the county. The person appointed to serve as public guardian must be an attorney in good standing with the Mississippi Bar who has been licensed to practice in this state for not less than five (5) years. The public guardian may not accept additional employment or hold additional offices that would constitute a conflict of interest with his services as public guardian. The term of office of the public guardian shall be four (4) years. A person may be reappointed by the board of supervisors and may serve successive terms as public guardian upon review and recommendation by the senior chancellor for the Eighth Chancery Court District and the Public Guardian Advisory Board. The public guardian, subject to the availability of funds made available by the Board of Supervisors of Harrison County, may employ and maintain such staff as may be necessary to carry out the functions of the office.
(2) Upon taking office, the public guardian shall take the oath of office and shall give bond to the Harrison County Board of Supervisors, with sufficient sureties, to be payable conditioned and approved as provided by law, in a penalty equal to three percent (3%) of the sum of all the state and county taxes shown by the assessment rolls and the levies to have been collected in the county for the year immediately preceding the beginning of his term of office; however, the bond shall not exceed One Hundred Thousand Dollars ($100,000.00). The bond premiums shall be paid from the Public Guardian Fund created in Section 5 of this act or from any other available funds of the county.
SECTION 4. (1) (a) The public guardian may be appointed to serve as conservator of a person, or his or her estate, who has been adjudicated incapacitated under Section 93-13-251, Mississippi Code of 1972, if:
(i) There is no family member, friend, bank, corporation or other person willing and qualified to serve as conservator.
(ii) The assets of the ward do not exceed the assets level for Medicaid eligibility, and the ward's income, from all sources, is less than Four Thousand Dollars ($4,000.00) per year. Income from public welfare programs, supplemental security income, disability pensions or other social security pension shall be excluded in such computations. However, a ward whose total income, counting excludable income, exceeds Thirty Thousand Dollars ($30,000.00) a year may not be served; and
(iii) The public guardian finds that assets or income of the ward exceeds the amount set forth in subparagraph (a)(ii) of this subsection, the guardian shall submit a resignation and petition for the appointment of a successor conservator. The public guardian shall not be dismissed until such time as a private conservator is appointed. If a qualified successor is not available, the public guardian may remain as conservator if the guardian makes reasonable efforts to obtain a successor.
(b) The public guardian, when appointed conservator of an incapacitated person, shall seek a family member, friend, bank, corporation or other person who is qualified and willing to serve as conservator. Upon determining that there is someone qualified and willing to serve as a conservator, either the public guardian or the qualified person shall petition the court for appointment of a successor conservator.
(c) When a person is appointed successor conservator, he or she immediately succeeds to all rights, duties, responsibilities and powers of the preceding public guardian.
(d) While serving as conservator for a person or estate pursuant to this act, the public guardian shall be vested with the same duties, powers and responsibilities as a guardian of a minor, and all laws relative to the guardianship of a minor shall be applicable to a conservator, including the provisions of Chapter 13, Title 93, Mississippi Code of 1972.
(e) No fees shall be recovered from the assets or income of the ward for conservatorship services provided by the public guardian. However, in cases where the assets or income of the ward exceeds the amount set forth in subparagraph (1)(a)(ii) of this section, and a qualified successor conservator is not available, a reasonable fee may be collected for the services of the public guardian, which fee shall be deposited into the Public Guardian Fund. All fees collected under this section shall be approved in advance by order of the Harrison County Chancery Court.
(2) (a) The public guardian may be appointed to serve as guardian ad litem in chancery court cases where the appointment of a guardian ad litem is required by law or where otherwise needed in chancery court matters. In such cases, the public guardian shall have the same powers, duties and responsibilities as that of private guardians ad litem.
(b) No fees shall be collected for guardian ad litem services provided by the public guardian.
However, upon a finding by the court that one (1) or both parties has sufficient assets to pay for the services of the public guardian, a reasonable fee may be collected, and same shall be deposited in the Public Guardian Fund. All fees collected pursuant to this section shall be approved in advance by order of the Harrison County Chancery Court.
(3) The public guardian may initiate alcohol and drug commitment proceedings on behalf of indigent families.
(4) The public guardian may be appointed in any chancery court matter wherein the court determines such services are needed.
(5) In any proceeding for appointment of a public guardian, or in any proceeding involving the estate of a ward for whom a public guardian has been appointed guardian, the court costs or filing fees may be waived at the request of the public guardian.
(6) No later than January 31 of each year, the public guardian shall file an annual report with the Clerk of the Harrison County Chancery Court, indicating, with respect to the period covered by the report, the number of cases handled, the date on which each case was assigned, the date of termination of each case which has been closed during the period, the disposition of each terminated case, and the total amount of fees collected during the period.
SECTION 5. The Board of Supervisors of Harrison County, in its discretion, by resolution duly adopted and entered on its minutes, may levy a fee in the amount of Ten Dollars ($10.00) upon each complaint filed in the Chancery Court of Harrison County. This fee shall be in addition to the fees required to be collected under Section 25-7-9, Mississippi Code of 1972, and shall be deposited into a special fund that is created in the county treasury to be known as the Public Guardian Fund. Monies in the fund may be expended, upon appropriation by the board of supervisors, to defray the costs of establishing and maintaining the office of public guardian as authorized under Sections 1 through 4 of House Bill No. 1485, 2003 Regular Session.
SECTION 6. Section 5 of this act shall take effect and be in force from and after its passage. Sections 1 through 4 of this act shall take effect and be in force from and after January 1, 2005.