What is Mississippi Guardianship?
The concept of guardianship in Mississippi is essential in ensuring the well-being and protection of those who are unable to fully care for themselves due to physical or mental incapacity. Understanding how guardianship works and when it becomes necessary is crucial for individuals and families navigating the complex terrain of guardianship in Mississippi.
Guardianship is a legal process where a court appoints an individual or organization (the guardian) to make decisions for someone who has become incapacitated or disabled and can no longer make responsible and informed decisions about their personal, health, or financial affairs. The need for guardianship arises when an individual can no longer manage their own affairs or when there are concerns about their ability to do so safely and effectively .
The concept of guardianship is rooted in the best interests of the individual who may need assistance, above all else. It becomes a legal arrangement to protect vulnerable individuals and help them maintain their quality of life. Nonetheless, guardianship also involves entering into a permanent legal commitment—a step that should be given serious consideration.
Deciding on guardianship in Mississippi is not something to be taken lightly. Overwhelmingly, the decision to become a guardian can be emotionally challenging and legally complex. This is where Mississippi guardianship forms come into play. These documents are the vehicle through which the court processes the appointment of a guardian and sets forth the responsibilities and limitations of guardianship.
Forms of Guardianship in Mississippi
In Mississippi, guardianship law is governed primarily by Sections 93-13, 93-19 and 43-13 of the Mississippi Code of 1972 Annotated. Mississippi law provides rules relating to the formation and administration of a guardianship for incompetent adults and minor children.
There are two (2) types of guardianship provided for under Mississippi law, guardianship of a minor child and conservatorship of an adult incapacitated person. Guardianship of a Minor Child – the laws pertaining to guardianship of a minor child are found in Section 93-13 of the Mississippi Code of 1972 Annotated. Specifically, guardianship is established pursuant to subsection 7 of Section 93-13 of the Mississippi Code of 1972 Annotated.
Conservatorship of a Minor Child – furthermore, with regard to conservatorship of a minor child, the laws pertaining to this are found in Section 93-13-107 of the Mississippi Code of 1972 Annotated. Section 93-13-107 of the Mississippi Code permits the appointment of a guardian of a minor child. This also applies to a minor who is over the age of 14 and who desires a conservator to manage his or her estate. Subsection 1 of Section 93-13-107 of the Mississippi Code allows for the appointment of a conservator for a minor child by the chancellor within the County where the minor child resides.
Guardianship of an Adult – the laws pertaining to the guardianship of an adult incapacitated person are found in Section 93-19 of the Mississippi Code Annotated. Specifically, the laws pertaining to guardianship of an adult incompetent person is pursuant to Subsection 3 of Section 93-19 of the Mississippi Code 1972 Annotated.
Furthermore, there is another type of guardianship, which entails conservatorship over the estate of an adult incapacitated person. The laws pertaining to conservatorship of an estate of an adult incapacitated person are found in Chapter 13 of the Mississippi Code Supplement of 2013. Specifically, the laws pertaining to conservatorship over the estate of an incapacitated person are found in Subsection 27 of Chapter 19 of the Mississippi Code.
Conservatorship of an Adult – again, with regard to the conservatorship of an adult incapacitated person, the laws pertaining to guardianship are found under Chapter 13 of the Mississippi Code Supplement of 2013. Specifically, these statutes can be found under Chapter 19 of the Code of 1972 Annotated.
There is a difference between an adult guardianship and a minor guardianship.
How to Establish a Mississippi Guardianship
Obtaining guardianship in Mississippi requires the petitioner to file a petition with the former Chancery Clerk to request for the guardianship of an incapacitated (or minor) adult. The petition must include the following information: Notice must be provided to the individual that the petitioner seeks to protect, any joint property owners, family members within three degrees of kinship in the county, and, generally, anyone who would inherit from the proposed ward. At least 40 days prior to the hearing on the petition, the petitioner must provide the court with proof of such notice being given. The proposed ward must be served personally with the petition, which initiates the proceedings, and has the right to attend the trial on his or her behalf. If the Court finds that the individual is in need of a conservator, he or she will appoint one. The duties of said conservator will be enumerated by the court. If the Court finds that the individual does not need a conservator, then one will not be appointed.
Filling out Mississippi Guardianship Paperwork
When it comes to guardianship of minors, Mississippi has two subcategories of forms: And a special form for Temporary Guardianship of a Minor.
The Forms:
- All forms should be typed or printed neatly in black ink. Use a black pen, where a pen is called for.
- An index or table of contents is included at the beginning of the forms. If you want to give the Judge a roadmap as to how your visitation and other pleadings and exhibits are laid out, it’s up to you. Do it if you want. Leave it out if you don’t.
- The caption has to include not only the name of the party filing the petitions, but also all other parties to the proceeding. This is important in case there were prior petitions for modification and the judge’s prior rulings impact your petition. Review the prior orders and make sure to include all parties.
- Throughout all forms, all blanks must be completed using words or blank lines with a border down the side of the paper. Do not leave blank boxes that were supposed to be filled in.
- After the caption, make sure to include the county and circuit court where the case is filed.
- The formulas for determining the amount of statutory bond include a reminder that the bond is filed in the Clerk of Court’s office. A good place to keep the bond receipt is attached to the statutory bond.
- The first paragraph in the form for Md-34 – Petition by Parent for Appointment of Guardian includes instruction to strike paragraph a or b, whichever is inapposite. It is important to strike through the incorrect paragraph and only leave the one paragraph that applies in the form. This instructs the reader that you did not make a mistake and then correct it. You did make a mistake, but tried to fix it on your own before filing the form. It is also important to double check ALL forms to avoid typos.
- In all forms, double check that information is consistent. For example, check that you have the same name spelled the same way on every form. For some reason, people will forget they made a mistake and fix it on later forms, creating unnecessary notice issues.
- Misspellings and other typographical errors are a common mistake in guardianship forms. These are annoying, especially if a party has to appear to ask for leave of court to correct these mistakes.
- Another common mistake for guardianship forms is omitting information. These forms ask for information that may seem inconsequential, but the rule of thumb is to always provide the information if the blank calls for it.
The Mississippi unjustified form of the guardianship for a disabled adult is probably the easiest guardianship form to file. Just as an example, Mississippi courts use a separate petition for a disabled adult who is below the age of 18 and below the age of 25 with the right of co-ownership.
Technically, this form should probably be called "mississippi guardianship form." Not just "guardianship forms," since there are more Mississippi guardianship forms available than this one.
Where to Locate Mississippi Guardianship Forms
The Mississippi Administrative Office of Courts is a one stop shop if you are looking for Mississippi guardianship forms. They have all of the forms for adult guardianships and conservatorships and they can be found here. See the right hand column of the page where you will find links for adult GUARDIANSHIP FORMS and adult CONSERVATORSHIP FORMS.
I mentioned in an earlier post that these forms had not been kept up-to-date, but I noticed that the most recent changes to the adult guardianship forms were relatively recent, dating back to mid-2008. The pop up legal forms guide has been updated within the last year and is only a few miles off in recommending forms to be used.
The only other place that I could find online forms of generally acceptable quality was the Mississippi State Department of Health website. Here are the links to its GUARDIANSHIP and CONSERVATORSHIP forms. I’m not wild about the fact that the latest revision to these forms appears to be a 2005 revision.
If you are unable to get the forms online , several courts in the state offer free forms. You should check with the particular court to see if they have guardianship forms that can be completed. These forms are in Word perfect format so you have to have Corel’s Word Perfect Viewer to open them. Or you can convert them to Word format using this method for the conversion.
And remember, you don’t have to re-invent the wheel when it comes to completing these forms. You can always take a complete form from the court and use it for general guidance on how to complete the form you are working on.
Legal Representation and Other Resources
By now, you should see the importance of using Official Mississippi Guardianship Forms when filing for guardianship in our state. But this is only part of a complex and emotionally taxing process that cannot be brushed aside as mere paperwork.
Sui Juris? Mississippi guardianship law is complex, and no legal guide, no matter how comprehensive, can substitute for competent legal counsel. This is especially true with probate law, which is full of potential traps for the unwary, and has numerous procedural requirements.
For many, the process consists primarily of filling out forms. For others, however, the process can be complicated by objections from interested parties, statutory construction issues, and other pitfalls. These unrepresented parties can sometimes become the cause of lengthy litigation, destroying the stability and peace of mind guardians seek to provide.
Legally incompetent litigants, such as your respondent, cannot represent themselves: "The liability of inquirers of fact for the cost of services rendered to those who are without power to use them is a burden which the policy of the law has not been prepared to recognize." Brown v. Gibbons, 163 So. 365, 9 So.2d 771 (Miss. 1947). Further, proceedings in which parties act without counsel are generally held to be void. Wolbach v. Rhodes, 150 Miss. 885, 117 So. 31 (1928), Williams v. Williamet, 75 Miss. 632, 22 So. 313 (1897).
In short, while the guardianship forms downloadable here provide the basic structure of the guardianship process, they do not substitute for legal advice and counsel. Your local attorney may provide the best option for securing competent legal counsel, but sometimes local counsel isn’t sufficient. Mississippi does have a few other options for obtaining legal assistance in your guardianship matter.
Legal Aid is a non-profit organization offering free legal assistance in Mississippi. More information about their services can be found here: Legal Aid Legal Services.
If you are an individual or family involved in a low income situation, you may also be able to obtain assistance from your local Legal Services office. A list of offices is available here: Legal Services Attorneys.
Mississippi’s non-profit organizations have combined efforts to create Volunteer Lawyers Project (VLP). VLP volunteers provide services to low-income members of Mississippi communities free of charge. You can contact them here: [VLP Contacts].
Mississippi’s Bar Association website can also be used to search for Mississippi attorneys, as well as provide insight into what type of information you should expect from your consultation: [MSBar.org]
Always be wary of any advice you get from anyone other than a licensed attorney!
Frequently Asked Questions Regarding Mississippi Guardianship
Q: What’s the difference between guardianship and conservatorship?
A: The main difference is the type of asset controlled. A guardianship is set up for people who cannot care for themselves but still own assets. Those assets – such as bank accounts and real estate – are controlled by a conservator. (That’s an example of how the authority of a conservator is actually broader than that of a guardian. But if you punt the question, you’ll lose at Jeopardy.)
Q: What’s the point? If my loved one already needs a conservator, why bother with a guardianship?
A: A guardianship is about more than ownership of assets. A guardian gets to make healthcare and living decisions for the person under guardianship.
Q: Can a family member be appointed as guardian?
A: Yes.
Q: If the person I’m trying to have guardian over goes to residency or a nursing home, will the guardian title be changed to custodian or similar?
A: No. It’s all just legalese and does not affect the authority of the guardian. A guardian has authority over the person and a conservator has authority over assets regardless of where the ward lives.
Q: Can a non-resident of Mississippi be my loved one’s guardian?
A: Yes, but there are some practical hurdles.
Q: What’s the procedure for getting guardianship over my loved one?
A: At least initially , you will file a petition with the Chancery Clerk’s office in the county where your loved one is a resident. A hearing will be held, and if everything proceeds without a problem, you will be appointed guardian by order of the Chancery Court subject to the requirements of Mississippi law.
Q: Can the Court appoint a guardian if I don’t want to serve in that capacity?
A: Yes. The Court is obligated to consider if a proposed guardian will be able to handle the responsibilities of the job. This is the situation where a court-appointed guardian would be appropriate, to spare family members the job if they are not suited for it.
Q: Can a corporation serve as my loved one’s guardian?
A: No.
Q: How much money can I get for serving as my loved one’s guardian?
A: The Chancery Court will appoint you based on your experience and the level of supervision required. If you are not up to the job, don’t take it.
Q: How long does the process take?
A: In most cases, about 60 to 90 days.
Q: Can I opt out after I’m appointed guardian?
A: Yes. If you get cold feet the Court will appoint someone else.
Q: What if the person I’m trying to have declared a ward hates me?
A: It doesn’t matter.
Q: What if the person I’m trying to have declared a ward hates my guts?
A: It doesn’t matter.