On April 16, 2019, Governor Bryant signed the “Mississippi Guardianship and Conservatorship Act” into law. The new law–also known as the “GAP Act” (for “guard and protect”)–substantially revises Mississippi’s guardianship and conservatorship laws, which had not been substantially changed in more than 30 years. The old laws lacked provisions for oversight, monitoring, and accountability. There were also incidents of fraud and abuse of vulnerable people.
The GAP Act is the result of over 2-years of intensive study by the 26-member “Mississippi Commission on Guardianship and Conservatorship” (the “Commission”). The Commission which was established by the Mississippi Supreme Court on April 13, 2017. The Commission was charged with developing recommendations to improve the way the courts protect children, vulnerable adults, and estates. The Commission was co-chaired by Justice Beam and Mississippi Judicial College Executive Director Randy Pierce and had some 26 participating members.
The Commission made recommendations to create a clear and workable statutory framework, modern and enforceable reporting requirements, comprehensive court monitoring procedures, state-driven accountability measures, protection of the ward’s fundamental rights, and transparency from all parties.
The GAP Act creates a comprehensive body of law that is supposed to:
- distinguish guardian of the person from conservator of the estate;
- clarify the role of a guardian/conservator in a ward’s life;
- specify the basis for the appointment of a guardian/conservator through improved medical evaluation forms;
- encourage individualized planning and use of the least restrictive alternative;
- create accountability between the guardian/conservator and the courts to prevent fraud and abuse;
- inform ward of procedural and substantive rights at hearings and ensure due process through the protection of the ward’s person and assets;
- create a guardian/conservator plan for use throughout the appointment, with the court able to adjust the plan at its discretion;
- monitor each ward’s plan, and track inventories and accountings through Mississippi Electronic Courts (MEC);
- establish an avenue for required well-being reports.
The new GAP Act defines a guardian as “a person appointed by the court to make decisions with respect to the personal affairs of the ward.” A “conservator,” on the other hand, is defined as “a person appointed by a court to make decisions with respect to the property or financial affairs of a ward.” These definitions make it clear that under the Gap Act a guardian does not have any power to deal with the real property of a ward. Only a conservator has the power to deal with the real property of a ward, and then only to the extent expressly set out in a court order.
Under the Gap Act, a conservatorship terminates in any of the following circumstances:
- when a minor ward dies;
- when a minor ward becomes an adult (reaches age 21) or becomes emancipated;
- when a court determines that the basis for appointment no longer exists, termination would be in the best interest of the ward, or for other good cause; or
- when the conservator is removed by the court or a conservator’s petition to resign is approved by the court.
The GAP Act also provides that if a conservator has been appointed in another state, and a petition for conservatorship is not pending in Mississippi, then the foreign conservator, after giving notice to the appointing court, may register the conservatorship in Mississippi by filing certified copies of (1) the order of conservatorship, (2) letters of conservatorship, and (3) any bond or other asset-protection arrangement required by the appointing court, as a foreign judgment in the county in which real property belonging to the individual is located.
The GAP Act goes into effect on January 1, 2020.
To learn more, read the 2019 Senate Bill 2828 or learn more about the GAP Act’s making: http://billstatus.ls.state.ms.us/2019/pdf/history/SB/SB2828.xml.
NOTE: The Lauderdale County Bar Association is planning a GAP ACT CLE for November 8, 2019, in Meridian, MS. For more details, please contact Aa’Keela Hudnall, current President of the Association (by email at email@example.com or by phone at 601-693-2393).
Also note that the GAP Act appears to be based, at least in part, on the Uniform Guardianship and Protective Proceedings Act (“UGCOPAA”), promulgated by the Uniform Law Commission. For more background information on the UGCOPAA visit the ULC or check out the ULC’s introduction video to UGCOPAA: