Mississippi Family Lawyer Specializing in Guardianship
If you are considering guardianship, be sure to consult a Mississippi family lawyer that can help you understand the process.
A “guardian” is someone who is chosen either by a court or by being named in a legal document such as a will and who is appointed to make legal decisions for another person who is unable to make those decisions on his or her own. Guardianship is often over a child or an individual who has become incapacitated through age or disability. The person the guardian takes care of is called a “ward.” A guardian is a fiduciary and is held to a very high standard of care in exercising his or her powers.
Situations Guardianship Typically Occurs
Guardianship for an incapacitated senior
Can be due to old age or infirmity. A guardian makes all legal decisions for the ward, but must do so only in the ward’s best interests. These decisions may include paying the ward’s bills, managing the ward’s personal property, deciding where he or she lives, arranging for education, and making medical decisions for the ward, among other duties.
A guardianship for an incapacitated senior will typically arise where someone determines that a senior has become unable to care for his or her own person or property. Usually there is a belief that the senior is being financially exploited or about to be exploited. Other times the person will become unable to care for him or herself and is not able to properly engage in the activities of daily living without assistance.
Guardianship for a developmentally disabled adult
The court may appoint a guardian when a potential adult ward is incapacitated and can’t make decisions for him or herself because of a mental or physical disability, disease, or addiction to alcohol or drugs. The court must generally also determine that if a guardian isn’t appointed, the person is at risk of serious harm or even death. Finally, the court must determine that there’s no other person available who can make the emergency decisions for the incapacitated person.
Guardianship for a minor child
When a minor child has no adult or other family member to make certain decisions on the minor’s behalf until he or she reaches the age of majority, a court can be asked to appoint a guardian for the minor child. Often a court-appointed guardian is a relative, spouse, or friend. But a guardian can also be a lawyer, a professional guardian, a private organization, or a state-run agency. The court makes a decision based on what is best for the ward. If a minor child still has biological parents, a guardianship will not sever the legal relationship that still exists between them. Instead it will co-exist with that legal relationship. In that sense, a guardianship is different from an adoption, wherein the adopting parents become the legal parents and the biological parents give up all parental rights and obligations.
Types of Guardianship in Mississippi
- Guardianship of the person only
- Guardianship of the estate only, sometimes known as a special guardian, and
- Guardianship of the person and the estate, sometimes known as a general guardian
Variations of Guardianship
May be drafted in a will
Is generally granted by a court to achieve a specific purpose for a certain period of time. Once the purpose is accomplished, the guardianship is terminated. One form of temporary guardianship is the emergency guardianship. This guardianship is generally granted where an emergency exists and someone is needed to give approval for the person to receive immediate services
Restricts the power of a guardian, allowing the individual to retain some legal rights and freedoms. Limited guardianships remain in force until a court order ends it.
Guardians ad litem
Is court-appointed representatives who stand in the shoes of a minor or a mentally ill or disabled person during court proceedings that involve the minor or incapacitated individual in some way.
Qualifying for Guardianship in Mississippi
In Mississippi, any U.S. citizen can qualify for guardianship except those who that are mentally incompetent or otherwise determined unsuitable by the court. A person usually has to be a citizen of the state, but a court will consider electing a nonresident if he or she meets the best interests of the ward. If the Mississippi guardianship involves a minor child, immediate preference is usually given to the parent unless the court appoints another person who is more qualified. If there has been evidence of abuse or neglect from either parent within a home, preference will usually be given for another person to assume guardianship.
In order to become a guardian in Mississippi, an individual must file a petition with the local court, testify in front of the court, and be approved by a judge. In selecting the guardian, the court considers the prospective guardian’s character, history, physical capacity, and other relevant attributes. A potential guardian’s limited education or financial resources are not disqualifying conditions in and of themselves.
Events that can trigger the end of a guardianship:
- The death of the child
- The child reaches the age of majority
- A judge determines that the guardianship is no longer necessary
- The guardian is found guilty of neglect or other malfeasance
- The sole purpose of the guardianship was to manage the ward’s finances and those assets are exhausted
Consult a Family Attorney with Guardianship Experience
If you have any questions about guardianship, we can help answer them. Call Maley & Nicholas for legal advice and legal representation in Mississippi. Schedule a consultation with an attorney.