GAP Act: General Provisions, Part I

Republished with permission of Chancellor Lawrence Primeaux. 

Continuing with Intro to the GAP Act.  Section numbers correspond to SB 2828.

Subject matter jurisdiction (104):

Chancery Court has jurisdiction to: (1) determine need for a guardianship or conservatorship; (2) determine how to manage, expend, or distribute property of the ward and ward’s dependents; (3) handle all matters of guardianship or conservatorship administration.

Chancery has non-exclusive jurisdiction to determine claims against the ward or ward’s property, and questions of title.

Transfer (105):

Court may transfer to another county if that is in the ward’s best interest:

May transfer to another county or state if in the best interest of the ward. First a final conservatorship accounting is made, then the guardian or conservator qualifies in the new county, and then the case is closed in the original county.

If a proceeding to establish a guardianship or conservatorship is filed in another state while a complaint is pending in Mississippi, the court confers with the judge in the other state and decides whether to assume or decline jurisdiction, based on the best interest of the respondent.

Venue for guardianship (106):

For a minor: in the county where the minor resides or is “present at the time the proceeding commences.” Or, the county where a proceeding for custody or parental rights is pending.

For an adult: in the county where the adult resides or is institutionalized by court order; for an adult emergency order, the county where the respondent is present.

Venue for conservatorship (106):

In the county where the respondent resides, regardless whether a guardian has been appointed in another county, or, if the respondent does not live in Mississippi, then the county where the property of the respondent is located.

If actions are filed in more than one county, the first-filed has exclusive right to proceed unless the judge finds that venue is properly in another court or that justice requires transfer.

Practice (107):

Proceedings are per MRE and MRCP. No mention of UCCR.

Guardianship and conservatorship actions for the same individual may be consolidated.

Letters of guardianship and conservatorship (108):

Clerk must issue upon taking of oath, posting of any required bond, and submission of fiduciary’s certificate and attorney’s certificate. Bond may be waived, and the court can impose an alternative asset-protection arrangement.

Court may limit powers of the fiduciary initially or at any time. Limitations must be spelled out in the Letters. The clerk will issue new Letters if powers are later curtailed or expanded.

Limitations on powers must be spelled out in the Letters.

Submission to jurisdiction (109):

By accepting appointment the fiduciary submits to the jurisdiction of the court for proceedings related to the guardianship or conservatorship.

Co-Guardians and Co-Conservators (110):

“When the Court deems appropriate,” co-fiduciaries must comply with Section 108.

Successor fiduciaries (111):

The court may appoint a successor guardian or conservator at any time to serve immediately as ordered.

Any person entitled to petition for appointment of a guardian or conservator under Sections 202 or 302 may petition the court for appointment of a successor guardian or conservator.

A successor must comply with Section 108.

Resignation (112)

Guardian or conservator may resign only after filing a petition and order accepting.

This article was republished with the permission of Chancellor Lawrence Primeaux of Meridian and was originally published on The Better Chancery Practice Blog on October 2, 2019.