As of July 1, 2014 the Mississippi Code was amended to define and allow a new type of guardianship known as the “Adult Guardianship”. The changes now clarify the difference in a conservator and guardian; specifically a conservator is a person appointed by a court to “administer the property of an adult, including a person appointed under Section 93-13-251, et seq.“, whereas a guardian is a person appointed by a court to “make decisions regarding the person of an adult, including a person appointed under Section 93-13-111 and Sections 93-13-121 through 93-13-135.” It is now also easier to transfer guardianships between states. Also a new section was created to address Adult Guardianships particularly; the new provisions can be found at Miss. Code Ann. § 93-14-1 et seq.
According to Miss. Code Ann. Sec. 93-13-38(1), “[a]ll the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” This means that the guardian will need to file an affidavit of creditors in the proper time, publish to creditors, file an inventory, and do all the other acts and things required of fiduciaries in estates.
It is also important to note that when a guardian has more than one ward, each ward’s business must be accounted for separately. (Mississippi Code Ann. § 93-13-69.)
And although guardians can ask for compensation for handling the guardianship, the request must comply with Uniform Rules of Chancery Court 6.11, which states that such a request “shall show the total amount of the estate coming into his hands, the total amount disbursed, the balance on hand, the nature and extent of the service rendered and expense incurred by him, and the total amount previously allowed to him on account thereof. Fees for fiduciaries and attorneys shall not be based on the value of any real property.”
For an Adult Guardianship to be successful, the following procedure must be completed:
- The potential Ward must have been a citizen of MS for a period of at least 6 months before the filing of a Petition for the Court to have jurisdiction;
- An attorney is required by Statute;
- A Petition for Guardianship of the Person will need to be drafted, signed by the petitioner and attested to (in front of a notary) and filed in the Chancery Court of the County the potential ward is a resident of; (in Lauderdale Co. the filing fee is $149)
- A Summons in accordance with M.R.C.P. 81 must be issued, setting a hearing date for the Ward and next friend or next of kin (who may join in the petition);
- If the Ward and/or Next of Kin did not join, he/she must be served with the Petition and Summons or join in the petition;
- At the hearing the evidence showing the need for a guardianship may be presented and any contesting evidence or views may also be presented;
- Once an Order Appointing a Guardianship of the Person is granted, the Guardian(s) must take an Oath and then Letters will be issued;
- The letters and order will be needed when performing your duties as Guardian.
- An affidavit of Creditors, and Notice of Creditors must be completed (Miss. Code Ann. § 93-13-38)
- An inventory unless waived must be performed within 3 months of his/her appointment as Guardian (Miss. Code Ann. § 93-13-33);
If you should find yourself in need of an Adult Guardianship and would like more information or my firm to guide you through the process and represent you in the proceeding please contact my office at 601-483-4144 or via email at stella@stellahurttlaw.com