Under Mississippi law, anyone over the age of 21 may be placed under the legal guardianship of another if there is evidence showing he or she cannot manage his or her own physical health, safety, or self-care.
Some guardianships last just a few months, while others can last decades. Someone who has survived a medical emergency may only need a guardian while they recover. Elderly citizens suffering from dementia, Alzheimer’s disease, or other debilitating conditions may need a guardian for the rest of their lives. Guardianships for developmentally disabled young adults can last for decades.
At Palmer & Slay PLLC, we frequently help families in the Brandon, Mississippi area get guardianship over loved ones who are impaired. But we also assist clients who believe they are being unfairly pushed to relinquish their independence. We work to avoid the stress and expense fighting for or against guardianship can cause by encouraging our clients to plan ahead and execute health care directives and power of attorney documents as part of their estate plan.
What is Guardianship?
Guardianships are legal arrangements that place an individual, also known as a ward, under the legal supervision of another person, known as a guardian.
In order for the courts to create guardianship, there must be evidence the ward cannot manage his or her own physical health, safety, or self-care. Under Mississippi state law, this may be because:
- He or she is unable to receive and evaluate information or make or communicate decisions, even with appropriate supportive services or technological assistance; or
- He or she has a mental illness or intellectual disability and is incapable of taking care of his or her self.
The guardian is typically a family member, friend, or professional appointed by the court. The guardian may be granted the legal authority to make all non-financial decisions on behalf of the ward, including all healthcare and end-of-life decisions. The guardian has a fiduciary duty to make the best decisions possible regarding the support, care, education, health, and welfare of their ward.
However, Mississippi law limits the powers of a guardian to those necessitated by the limitations and demonstrated needs of the ward. Guardians are required by law to encourage the development of the ward’s maximum self-determination and independence, and the courts must consider if there is a less restrictive alternative to guardianship that would meet the needs of the ward.
How is a Guardianship Different from a Conservatorship?
Guardians are tasked with taking care of the physical and emotional needs of their wards. But sometimes that is not the only help a ward needs. When a person also needs assistance with financial matters the court can consider creating a conservatorship.
A conservatorship is a legal arrangement that gives one person, known as a conservator, the legal authority to manage the property and financial affairs of another person, known as a ward.
Depending on the help and support a ward needs, a guardianship and conservatorship may be created at the same time, in rapid succession, or years apart. In some cases, the same individual fills the guardian and conservator roles. Others prefer to have different people assisting them in different ways.
Creating a Guardianship
A guardianship may be created by the local chancery court only after a potential ward is notified and has the opportunity to attend a hearing. If a potential ward does not have an attorney to counsel them during this process, the court may appoint one.
When a guardianship is created, the guardian must give the ward, the ward’s attorney, and other interested parties formal notice. The notice must include information on the powers granted to the guardian, the rights of the ward, and instructions on how to modify or terminate the guardianship.
No ward should be blind-sided by an announcement that they have been placed under guardianship, or be unable to change the guardianship if their circumstances improve.
Oversight & Reporting Requirements
Until recently, Mississippi’s laws governing guardianships and conservatorships lacked provisions for oversight, monitoring and accountability. As a result, many wards were taken advantage of by unscrupulous or lazy guardians and conservators.
Today, both guardians and conservators are much more closely monitored by the court system, which has been empowered to “guard and protect” (GAP) some of our state’s most vulnerable people.
- Most local chancery courts require guardians to file a ward care plan, and provide updates when any substantial changes are needed. Well-being reports must also be filed on a regular basis.
- The powers of guardians are limited in significant ways. For example, a guardian cannot unilaterally and permanently restrict a ward’s ability to contact family, friends, or even strangers they wish to strike up a relationship with.
- Courts must consider if there is a way to get the ward the help they need without putting them under a full conservatorship.
Avoiding, Fighting, or Ending a Guardianship
Getting legal guardianship of someone is not easy. It is a time-consuming and relatively expensive process. It can also be an emotionally draining affair that pits family members against one another.
At Palmer & Slay, we advise all of our estate planning and elder care clients to do whatever they can to avoid having to go to court to ask for (or fight) a guardianship. That means proactively executing an advanced health-care directive and a power of attorney for finances.
These documents can act as a shield against guardianship by giving the power to make decisions to someone you trust instead of someone the court selects. The documents can specify under what circumstances the appointed agent is authorized to act, and provide some guidance on how decisions should be made.
Even if a guardianship is ultimately granted, the agent(s) appointed in an advanced health-care directive or a power of attorney document can override a guardian’s decisions unless a court says otherwise.
If a guardianship petition has already been filed it is possible to fight it. The court must hold a mandatory hearing on the petition before acting on it. Potential wards can speak on their own behalf or bring in medical evidence during this hearing to demonstrate their ability to take care of themselves.
Guardianships can also be amended or ended. These legal relationships are not meant to last for eternity. If a ward’s condition improves, he or she can request the court modify or terminate their guardianship. Changes can also be requested by family members who believe their loved one is being mistreated by a guardian.
Preserving Your Wealth. Protecting Your Loved Ones.
Guardianships are important tools that families can use to make sure their loved ones are well cared for. They can be quite useful if someone is suddenly incapacitated and has not executed a power of attorney document.
However, things get contentious when the person being put under guardianship does not think they belong there, or when family members disagree about the actions a guardian is taking on behalf of a loved one.
Whether you are interested in seeking, modifying, or fighting guardianship, Palmer & Slay’s compassionate and caring team of attorneys is here to help. Please contact us today to schedule a meeting.