Best-selling novelist John Grisham practiced law and was a legislator in the state of Mississippi, but he is best known his legal thriller books.
While Grisham writes about fictional legal cases, the law significantly impacts many real-life matters in Mississippi.
Jump ahead to these sections:
- What Types of Guardianship Exist in Mississippi?
- Who Are the Default Guardians for Children, Older Adults, or Adults With Special Needs in Mississippi?
- What Forms Do You Need to File for Guardianship in Mississippi?
- How Do You Assign a Guardian for a Child in Mississippi?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
- Frequently Asked Questions: Guardianship in Mississippi
What happens in Mississippi if a child’s parents are unable to care for them?
What happens in Mississippi if an adult, because of disability, needs someone to take care of their personal affairs or property?
The guardianship laws in Mississippi address these real-life questions.
This article examines how guardianship works in Mississippi for children and families.
What Types of Guardianship Exist in Mississippi?
Mississippi recognizes several different types of guardianship.
Guardianship involves a court appointing someone to make decisions about the affairs of another person.
Note that guardianship is different from conservatorship. Conservatorship involves the court appointing someone to make decisions concerning another person's property or financial affairs.
Guardianship and conservatorship can either be full or limited. "Full" means the court grants the guardian or conservator all powers available under the Mississippi Guardianship and Conservatorship Act. "Limited" means the court only gives the guardian or conservator specific powers or duties.
In both cases, in Mississippi, the person under guardianship or conservatorship is called the "ward."
Who Are the Default Guardians for Children, Older Adults, or Adults With Special Needs in Mississippi?
A child's parents are their default guardians in Mississippi. However, if the parents are unable, unwilling, or unavailable to parent their child properly, a court may remove them and appoint some suitable person as guardian.
The court can appoint someone the parent has already nominated as guardian in a will or other record unless the court finds this is not in the child's best interests.
If the parent has not left any record or named anyone as guardian, a court can appoint a person the child nominates if the child is 14 or older. Again this depends on whether the court thinks this is in the child's best interests.
For adults, appointing a guardian in Mississippi is at the court's discretion. If two or more persons want to become the person's guardian, the court selects the person considered best qualified.
To determine the best-qualified guardian, the court considers the person's relationship with the adult, their skills, the extent to which the person and the ward have similar values and preferences, and the likelihood the person can perform the duties of a guardian successfully. It will also take into account any wish the ward expressed, including what they may have written in a will, a power of attorney document, or a health-care directive.
What Forms Do You Need to File for Guardianship in Mississippi?
The primary forms you'll need to fill out include:
- Petition for Appointment of Guardian for a Minor
- Parental Waiver for Guardianship of a Minor
- Nomination of Guardian of a Minor (for minors 14 or older)
- Order for Appointment of Guardian for a Minor
- Petition for Adult Guardianship and/or Conservatorship
- Order of Appointment for Guardianship and/or Conservatorship of Adult
- Oath of Guardian
- Letters of Guardianship
How Do You File for Guardianship in Mississippi?
The first step to appoint a guardian is to file a petition in the chancery court for the county where the ward resides.
After a hearing, the court issues an order concerning guardianship.
Courts generally favor limited guardianship arrangements over full guardianships as there is a general desire under Mississippi law to select the least restrictive option for the ward. The thought is that limited guardianship encourages the ward to develop maximum self-determination and independence.
How Do You Assign a Guardian for a Child in Mississippi?
In Mississippi, guardianship is a judicial process; only a court can assign guardians. Even if a parent has named a default guardian for their child, a judge ultimately decides who should be the guardian. Usually, the judge keeps the parent's wishes in mind, but if they find the default guardian may not be the best choice, they will not appoint them.
How Guardianship Works for Minor Children
In Mississippi, the court may appoint a guardian for a child if the court finds the appointment is in the minor's best interest. This usually involves one of these situations with their parents:
- The parents have been fully informed of the nature and consequences of guardianship, and each parent consents.
- The court has terminated both parents' rights.
- There is clear and convincing evidence that none of the child's parents is willing or able to exercise the powers the court is granting the guardian.
Once appointed, the guardian has essentially become the child’s parent, with all those duties and responsibilities. The guardian must act in the child's best interest and exercise reasonable care, diligence, and prudence.
How Guardianship Works for Older Adults
In Mississippi, the court may appoint a guardian for an older adult who cannot take care of themselves because they can no longer process information or make or communicate decisions, even with help.
Once appointed, a guardian for an adult may:
- If the court has not appointed a conservator, apply for and receive funds and benefits for the ward
- If allowed in the court order, decide where the person lives
- Consent to health or other care, treatment, or service for them
- If there is no conservator in the arrangement, take appropriate action to compel a person to support the ward financially
- To the extent reasonable, allow the ward some responsibility for their own decisions
- Receive and keep the ward's health care information
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
In Mississippi, the court may appoint a guardian for an adult who cannot care for themselves because the court finds them to have a mental illness or intellectual disability.
Under Mississippi law:
- A "person with mental illness" means anyone with a major disorder that grossly impairs judgment, behavior, understanding, or the capacity to recognize reality. This can be disturbing behavior or faulty perceptions, especially that create a higher risk of harm to themselves or others.
- A "person with an intellectual disability" means anyone diagnosed with substantial limitations in everyday functioning before age 18. This can mean they have lessened intellectual abilities, an inability to communicate effectively, care for themselves, and/or underdeveloped social skills. This is especially relevant if their recent behavior poses a substantial likelihood of physical harm to themselves or others.
Frequently Asked Questions: Guardianship in Mississippi
Here are some frequently asked questions about guardianship in Mississippi.
How long is temporary guardianship in Mississippi?
Suppose the court in Mississippi finds that a child needs an immediate guardian to prevent substantial harm from coming to them, and no other person appears to have authority and willingness to step up. In that case, the court may appoint an emergency guardian for up to 60 days. This can be extended for one more period of 60 days.
The court may appoint an emergency guardian for an adult under similar conditions for up to 60 days.
What's the difference between guardianship, conservatorship, and custody in Mississippi?
In Mississippi, "conservatorship" means someone takes care of a person's property or financial affairs, not their personal affairs.
The court may appoint a conservator for a child if it finds clear and convincing evidence that this would be in the child's best interest. This can be because:
- The child owns funds or other property that require management or protection that no one else in their life can provide.
- The child may have financial affairs that may be put at unreasonable risk because of their age.
- Conservatorship is necessary to get or use funds for the child’s well-being.
The court gives weight to any parent's recommendation.
The court may appoint a conservator for the property or financial affairs of an adult if the court finds that:
- The person cannot manage their own property or financial affairs because they cannot properly evaluate information or make or communicate decisions, even with help.
- The person is missing, detained, incarcerated, or unable to return to the United States.
- Appointment is necessary to avoid the adult incurring harm or losing their property.
- A less restrictive arrangement cannot meet the person's needs.
In Mississippi, the term "custody" is only used in cases involving children and their personal lives, not their financial situations.
Can you get guardianship without going to court in Mississippi?
No, you cannot get guardianship in Mississippi without going to court.
However, there are some alternatives to guardianship.
With "powers of attorney," you name someone to make decisions for you if you become disabled. You do not have to go to court to implement a power of attorney.
With a "living trust," you name someone to manage your assets if you become disabled. You do not have to go to court to implement a trust.
Powers of Attorney and a Living Trust Can Be Simpler Than Guardianships
Guardianship can be a valuable mechanism for families in Mississippi. It can be a critical resource for children without parents or adults who cannot care for themselves or their property.
However, it is important to remember that guardianship involves litigation, which means there will be legal fees, court costs, and delays. It's not the easiest process.
Given the issues that can arise, it is prudent to engage in some planning: consider setting up a power of attorney and/or a living trust. By implementing a power of attorney or living trust, you can avoid the complications and headaches of certain guardianships and minimize the real-life burden of disability for you and your family.
This article is based on a general summary of the Mississippi Guardianship and Conservatorship Act, 2019 Mississippi Code, Title 93, Chapter 20.