Article byPosted Featured AuthorDecember 2019
For months now, the Mississippi Supreme Court, the Mississippi Bar, the Judicial College and at least twenty-four practitioners and Chancellors across the State have been promoting the Mississippi GAP Act and its upcoming transition into Mississippi legal practice. If you’ve paid attention, you’ve heard about the town halls, and maybe attended a CLE focused on the Act. If you’re especially studious, you might have even checked out the Act itself, and read through all eighty-four provisions.
Or, if you’re anything like most attorneys (MYSELF INCLUDED) you waited until the last minute to get prepared. You’re only now starting to digest the new information, and you’ve crossed your fingers that it’s user friendly, easy to comprehend, and won’t completely upend your practice when it takes effect.
Well there’s good news and bad news folks: the bad news is that the “last minute” is here — the Act’s January 1, 2020 effective date is upon us! The good news is that the provisions of the GAP Act are incredibly similar to the laws you’re used to, with some clarifying language, and a few new, bonus features.
Before I tackle the substance of this article, I have a quick, friendly disclaimer: this article is not intended to be a comprehensive overview of the laws taking effect, and should by no means replace a firsthand review of the new statutes. (Lawyerly, am I right?) Instead, my purpose in this article is to give you a broad overview on what’s changed and what’s new. I don’t intend to make you an expert on the Act through this piece, but I do hope that it will make the transition a bit easier and perhaps spark a discussion on the effects that these changes will have on your practice and clients.
When the Mississippi Supreme Court established the Mississippi Guardianship and Conservatorship Commission (MGCC) in 2017, it charged Commissioners with identifying gaps and inconsistencies in Mississippi’s Guardianship and Conservatorship laws and creating a referendum for statutory and procedural solutions. Beyond that, it was up to the Commission to determine how it would answer the call.
Through its research, case studies, monthly meetings, and frequent discussions with community leaders, the MGCC determined that a simple fix which addressed all the broken parts of the current statutory scheme could not be achieved. Instead, a full repeal of the existing statutes was needed, allowing for a complete replacement of the Guardianship and Conservatorship laws.
This approach seemed daunting at first. But after several months of deliberation, the MGCC arrived at a solution which narrowed its focus to the effects of the repeal on three distinct subject areas: Minors, Adults, and Estates. The MGCC recognized that, for the most part, the core processes for establishing a Guardianship or a Conservatorship should remain unchanged. In doing so, the MGCC was able to maintain much of the spirit and content of the existing laws and direct its efforts to clarifying the law’s concepts and mechanics.
The MGCC began by categorizing the statutes to provide practitioners and fiduciaries specific sections of the Act to reference when dealing with individual protective arrangements. By separating the laws into (1) Guardianship of the Minor, (2) Guardianship of the Adult, and (3) Conservatorship of the Estate, the Act provides readers an easy application of the laws, narrowly tailored to a fiduciary’s unique situation. These laws can be found in the 200s section, the 300s section, and the 400s section of the Act, respectively.
A notable change in the structure of the statutes is that the MGCC has fully and clearly defined the difference between a Guardian and a Conservator. Under the current scheme, the terms Guardianship and Conservatorship are used interchangeably between protective arrangements for minors, adults, and financial accounts. Under the GAP Act, the difference is clear: a Guardianship pertains to an arrangement over the person, and a Conservatorship pertains to an arrangement over the estate/money. An individual ward may be under a Guardianship, a Conservatorship, or both at any given time. If under both, a Guardian and a Conservator may be the same person or two separate fiduciaries, depending on the court’s decision.
Furthermore, the MGCC worked to maintain consistency between similar provisions for ease in application. Looking to the Act: Sections 201, 301, and 401 all deal with Basis for Appointment for Minors, Adults, and Conservatorships, respectively. Similarly, 202, 302, and 402 of the Act provides information on the Petition for Appointment for each. Many of the other statutes under the Act also follow this scheme.
When reading through the statutes (Petition, Notice, Order, and others) you’ll also see that there are several paragraphs which mimic each other almost identically. This duplication was by design, as an effort to help you through the transition and for ease of practice for future generations.
While much of the Act maintains the spirit and the purpose of our previous statutes, several concepts have been added to our Guardianship and Conservatorship laws under the new scheme. The changes were recommended to provide a practical application of the protective arrangements in all situations, guaranteeing the protection and wellbeing of the wards, while also ensuring oversight, monitoring, and accountability of the arrangements by the courts.
The first of these changes is the creation of Limited Guardianships and Conservatorships for both minors and adults in sections 206, 309, and 411. Although many have seen these arrangements in practice, these sections codify a chancellor’s option to create a narrow protective arrangement for the ward, without entirely stripping away his or her rights. The court’s orders under these statutes must be very specific, outlining the property controlled under a Limited Conservatorship, and the specific powers granted under both a Limited Conservatorship and a Guardianship. Notably, if a court determines that a general (or full) Guardianship is warranted, the order on appointment must include specific findings to support its conclusion that a limited arrangement would not meet the needs of the ward.
Another important concept new to Mississippi statutes, but frequently seen in practice, is the establishment of Emergency Guardianships and Conservatorships under sections 207, 311, and 413. These statutes each contain identical language, requiring a petition of the court requesting the emergency arrangement, an order at the discretion of the court, and a finding that the ward’s health, safety, or welfare would be substantially harmed without intervention by the court.
Emergency arrangements for minors and adults, through either a Guardianship or Conservatorship, may not exceed sixty (60) days. If after 60-days, the court determines that the conditions of appointment have not changed, and the reasons for the emergency appointment continue, the court may extend its order for an additional 60-days.
The intent, here, is that within the provided 120-day window, the petitioner and/or other parties interested in the wellbeing of the ward would have enough time to secure the information required for a traditional protective arrangement (as needed), while ensuring the safety and welfare of the ward. However, the court may remove an Emergency Guardian or Conservator at any time. Likewise, the appointment of a Guardian/Conservator under these Emergency provisions does not create a basis for their appointment in the long-term.
Previously, the professional evaluations required to determine whether a “conservator” was needed for the person or the estate were covered under Mississippi Code § 93–13-255. There, we found specifics on witness testimony and the information required for a judge to make a formal determination on the necessity of a “conservator”.
The GAP Act has made this evaluation a bit easier for legal and medical practitioners alike, while also providing more options for fiduciaries who will be tasked with the scheduling and pursuit of the evaluations of the prospective ward.
The requirements for these professional evaluations have been divided into two statutes: section 407 for those evaluations concerning a Conservatorship and section 305 for an Adult Guardianship. Although these sections focus on very different arrangements, their requirements are identical, allowing for those providing the evaluations to speak to the need for either a Guardianship or Conservatorship, or both.
The revised professional evaluation process maintains the original requirement of two (2) practitioners assessing an individual, with at least one licensed physician performing the evaluation. The second practitioner may still be a licensed physician or psychologist; however, the statute opens the field of practitioners qualified to evaluate an individual by allowing for the use of a nurse practitioner or a physician’s assistant as the second evaluator.
The new statutes also introduce the use of telemedicine as an option in these evaluations. The statutes define what qualifies as a permitted telemedicine evaluation, and references Mississippi’s existing law on the practice of telemedicine as an additional requirement to this option.
As mentioned previously, a primary concern when the Court organized the MGCC was the lack of apparent oversight of existing orders and the lack of accountability through monitoring and enforcement. The MGCC paid special attention to this need and developed a few statutes which would ensure the court’s involvement in a Guardianship or Conservatorship after it has issued an order.
The first of these mechanisms is the Guardian’s Plan and Conservator’s Plan. Found in sections 315 and 419, respectively, these plans are tools which help the court to understand the fiduciary’s strategy for ensuring the safety and welfare of the ward. The plans also give the court a metric by which it may measure any improvements or declines in the ward’s arrangement.
The Guardian’s Plan and the Conservator’s Plan are exceedingly similar in their requirements and are entirely discretionary at the will of the court. The statutes outline the content of the plans and specify when and how the plans should be amended. The statues also include a notice provision, identifying who is entitled to a copy of the plan and who is merely entitled to mailed-notice of the plan’s filing.
Another statute ensuring that the court remains involved in Guardianships after an order is issued is found in the Guardian’s Well-Being report. Unlike the statutes we’ve reviewed up to this point, the Well-Being Report is entirely unique to an Adult Guardianship. Like the Guardian’s Plan, the Well-Being Report is fully discretionary, and at the will of the court. Designed to complement the Accounting and Inventory required under a Conservatorship, the Well-Being Report requires that a Guardian provide the court with specific information on a ward’s mental, physical, and social condition.
In developing this section, the MGCC considered that too often our concern is focused on the ward’s assets. While important, the focus is thereby shifted away from the ward as an individual and on to his or her tangible and real property. The Well-Being Report helps to strike a balance between accounting for a ward’s assets and protecting him or her as a person.
A note about the Well-Being Report: if the arrangement initially required a Guardian’s Plan, and a significant deviation from that plan occurred, the court will order a Guardian to file a Well-Being Report under this section within ninety (90) days. The court may also require the Report annually, if there is a concern for the ward’s welfare.
Section 420 (Inventory) and 423 (Accounting) are unique to a Conservatorship and increase the oversight of that protective arrangement by the courts. Both sections are lengthy, and somewhat involved; though, every detail about what must be included in both reports is meticulously outlined for ease of practice. While that may not bring you comfort, it’s helpful to note that Section 420 (Inventory) is nearly identical to the law it’s replacing (Mississippi Code § 93–13-33), with some modifications for clarity and consistency.
Furthermore, while section 423 (Accounting) includes a lot of detailed information, the bulk of the statute lists the information the court will require in an annual Accounting. Most of these requirements were in the existing law and this updated statute simply clarifies the responsibilities of the Conservator.
As you read this article, January 1st may be two weeks away. It may be tomorrow. Or it’s possible that months have passed since the transition and you’re desperately trying to catch up with these changes. Wherever you find yourself in this scenario, the MGCC, its partners, and the Court are here to help.
Like any change meant to affect drastic improvement in the state, implementation of these new rules will not be easy. With that in mind, the MGCC has done a few things to ease that transition. First, with the help and advice of physicians, chancery clerks, chancellors, and practitioners, the MGCC has created several comprehensive legal forms to ensure all your documentation follows the requirements outlined in the Act. Among others, the forms include: Petition, Notice, Order, Physician’s Evaluation (Medical) Affidavit, Inventory, and Accounting. Although strongly encouraged, none of these forms are mandatory. (On an un-objective, completely biased note: I think you’ll find them incredibly helpful in the transition!) The are all fully editable to fit your needs and will be offered on the Judicial College’s website at the first of the year, at https://mjc.olemiss.edu/forms/.
Additionally, with the help of Chancellors and practitioners statewide, the MGCC has proposed amendments to several Uniform Chancery Court Rules and rules of Mississippi Civil Procedure. Subsequently, MRCP Rule 5.1 and Uniform Chancery Court Rules 6.01, 6.02, and 6.03 have been amended to correspond with the GAP Act.
After the GAP Act was signed into law, the Court also initiated Pilot Programs in the 6th and 10th Chancery Districts to implement the new laws and see the statutes in action. Through these pilots, the MGCC has been able to take note of the issues which need fine-tuning and any clarifications that need to be made. The districts in the pilots have also created forms, stamps, and practice tips which will aid you in January when the laws take effect.
The Court and the MGCC recognize that there is going to be a learning curve when the Act is implemented. Through various CLEs this fall and the pilot programs, we have experienced this curve firsthand and are working to fix the hiccups. Among those efforts, the MGCC has begun drafting a list of items which need to be addressed either through Rule amendments or through a clean-up bill this legislative session.
To that end, we encourage your questions, and want to hear your concerns. Please take some time to read through the Act and go to any of the CLEs offered. Likewise, if you have questions on the Act, its application, or edits for our proposed clean up bill, please submit them to Whitney Thrasher at email@example.com.
With your help in implementing and fine tuning these new laws, we can achieve the goal of the GAP Act, to Guard And Protect Mississippi’s most vulnerable populations.