MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary A
By: Representative Bennett
AN ACT TO AMEND SECTION 93-20-401, MISSISSIPPI CODE OF 1972, TO REVISE THE REASONS THE COURT MAY APPOINT A CONSERVATOR; TO AMEND SECTION 93-20-402, MISSISSIPPI CODE OF 1972, TO REVISE THE LIST OF PERSONS WHO MAY FILE A PETITION FOR APPOINTMENT OF A CONSERVATOR; TO AMEND SECTION 93-20-403, MISSISSIPPI CODE OF 1972, TO REVISE THE LIST OF PERSONS TO WHOM A NOTICE OF PETITION FOR CONSERVATORSHIP IS REQUIRED; TO AMEND SECTION 93-20-408, MISSISSIPPI CODE OF 1972, TO REVISE WHO MAY PARTICIPATE IN CONSERVATORSHIP HEARINGS; TO AMEND SECTION 93-20-410, MISSISSIPPI CODE OF 1972, TO PROVIDE RESTRICTIONS FOR PERSONS WHO CAN BE APPOINTED AS A CONSERVATOR; TO AMEND SECTION 93-20-411, MISSISSIPPI CODE OF 1972, TO REVISE WHEN NOTICE OF A PETITION FOR CONSERVATORSHIP IS REQUIRED; TO AMEND SECTION 93-20-413, MISSISSIPPI CODE OF 1972, TO REVISE THE TIME FOR AN EXTENSION OF AN EMERGENCY CONSERVATORSHIP; TO AMEND SECTION 93-20-414, MISSISSIPPI CODE OF 1972, TO REVISE THE LIST POWERS OF A CONSERVATORSHIP THAT REQUIRE COURT APPROVAL; TO AMEND SECTION 93-20-418, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT A CONSERVATOR SHALL NOT USE HIS OR HER POSITION FOR PERSONAL FINANCIAL GAIN; TO AMEND SECTIONS 93-20-419 AND 93-20-420, MISSISSIPPI CODE OF 1972, TO REMOVE THE WAIVER OF A CONSERVATOR'S PLAN AND INVENTORY REQUIREMENT; TO AMEND SECTION 93-20-425, MISSISSIPPI CODE OF 1972, TO REQUIRE A HEARING WHEN THERE IS A CONFLICT OF INTEREST FOR THE CONSERVATOR; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-20-401, Mississippi Code of 1972, is amended as follows:
93-20-401. (1) For a minor. 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. 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;
(iii) The adult has been diagnosed with a medical condition that affects his or her cognitive ability;
(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 2. Section 93-20-402, Mississippi Code of 1972, is amended as follows:
93-20-402. (1) Any relative
or person interested in the estate * * * 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 the chancellor or clerk of the chancery court, any relative * * * 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.
(3) 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 3. 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 and 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:
(1) 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.
(2) If no relative within the third degree of kinship to the 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.
* * *
(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 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 that the court determines is entitled to
notice. Failure to give notice under this subsection * * * precludes 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.
* * *
SECTION 4. 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, * * * if the court determines that
the best interest of the respondent will be served. The court may impose
appropriate conditions on the person's participation.
SECTION 5. Section 93-20-410, Mississippi Code of 1972, is amended as follows:
93-20-410. (1) Appointment of a conservator 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, 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 cannot be determined, 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 * * *.
* * *
(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 6. 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 * * * not be 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 7. 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 * * * thirty (30) 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 8. Section 93-20-414, Mississippi Code of 1972, is amended as follows:
93-20-414. (1) Except as otherwise ordered by the court, a conservator must give notice to persons entitled to notice under Section 93-20-411(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 93-20-427(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 ward'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; * * *
(g) Any medical diagnosis that affects cognitive decision making; and
( * * *h) 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 9. Section 93-20-418, Mississippi Code of 1972, is amended as follows:
93-20-418. (1) A conservator is a fiduciary and has duties of prudence and loyalty to the ward. A conservator has a duty to not use his or her position for financial gain against the ward's estate.
(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 91, 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 10. Section 93-20-419, Mississippi Code of 1972, is amended as follows:
93-20-419. (1) * * * 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 * * * 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 93-20-411(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 93-20-411(5) or a court order, and any other person the court determines.
SECTION 11. Section 93-20-420, Mississippi Code of 1972, is amended as follows:
93-20-420. (1) * * *
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 93-20-411(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 12. Section 93-20-425, Mississippi Code of 1972, is amended as follows:
93-20-425. 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 93-20-411(5) or a court order and a hearing on the record about the transaction. A court shall hold a hearing after proper notice has been provided to persons entitled to notice under Section 93-20-411(5). If the court authorizes the transaction, the court shall place the reasons for the authorization in the record. 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 13. This act shall take effect and be in force from and after July 1, 2024.