When an individual is no longer able to manage their personal affairs, their finances, or both, Mississippi law provides for the appointment of a guardian, a conservator, or both. A guardian is appointed to make personal decisions for the incapacitated person — decisions about where they live, what medical care they receive, and other aspects of their daily life. A conservator is appointed to manage the incapacitated person's financial affairs — paying bills, managing investments, and handling financial transactions.

These proceedings are some of the most consequential in the legal system because they involve taking away a person's fundamental right to manage their own life and finances. For that reason, they are often contested, and they frequently give rise to ongoing disputes about who should serve, how the protected person's affairs should be managed, and whether the guardian or conservator is fulfilling their duties.

Contested Guardianship and Conservatorship Proceedings

The initial proceeding to establish a guardianship or conservatorship can be contested on several grounds. The proposed ward may contest the determination that they are incapacitated and argue that they are still capable of managing their own affairs. Family members may disagree about whether a guardianship is necessary or about who should serve as guardian. Multiple parties may petition to serve as guardian or conservator, each arguing that they are the most appropriate choice.

These proceedings require medical evidence of the proposed ward's capacity, testimony about the proposed ward's ability to manage their affairs, evaluation of the proposed guardian's or conservator's suitability, and consideration of the proposed ward's own preferences, to the extent they can be determined. The court must balance the need to protect a vulnerable person against the fundamental right to personal autonomy and self-determination.

Who Should Serve

The selection of a guardian or conservator is often the most contentious issue. Family members frequently disagree about who should serve, and these disagreements often reflect broader family conflicts. One child may argue that another child is unfit to serve because of financial irresponsibility, substance abuse, or a history of conflict with the proposed ward. The proposed ward may prefer one family member over another, or may prefer a professional guardian or conservator over any family member.

Mississippi law provides guidance on the priority of persons who may serve as guardian or conservator, but the court ultimately has discretion to appoint the person who is best suited to serve the protected person's interests. In cases involving substantial assets, the court may appoint a professional fiduciary or a financial institution as conservator, particularly if the family dynamics make it unlikely that a family member can serve without conflict.

Disputes During the Guardianship or Conservatorship

Even after a guardian or conservator is appointed, disputes frequently continue. Common issues include disagreements about the protected person's care, including where they should live, what medical treatment they should receive, and who should have access to them; allegations that the guardian or conservator is not fulfilling their duties, is mismanaging assets, or is engaging in self-dealing; disputes about the guardian's or conservator's compensation; and petitions to modify, terminate, or transfer the guardianship or conservatorship.

Financial Exploitation and Mismanagement

One of the most serious concerns in conservatorship cases is financial exploitation of the protected person. This can take many forms, including the conservator using the protected person's funds for their own benefit, the conservator making unnecessary or imprudent expenditures, the conservator failing to invest and manage assets prudently, family members or third parties pressuring the conservator to make distributions for their benefit, and inadequate oversight and accounting that allows waste or theft to go undetected.

Detecting financial exploitation requires careful review of the conservator's accounts, bank statements, investment records, and expenditures. The firm's financial background is particularly valuable in these cases, where the ability to trace funds, analyze transactions, and identify irregular patterns can make the difference between discovering a problem and missing it entirely.

Elder Abuse

Guardianship and conservatorship disputes sometimes involve allegations of elder abuse, which can include financial exploitation, physical abuse, emotional abuse, neglect, and isolation. These cases may involve both the guardianship court and other legal proceedings, including criminal complaints and protective orders. The intersection of guardianship law with elder abuse law adds another layer of complexity to an already complex area of practice.

Alternatives to Guardianship and Conservatorship

Guardianship and conservatorship are considered measures of last resort because they involve the most significant restriction on an individual's rights. Before pursuing a guardianship or conservatorship, it is worth considering whether less restrictive alternatives are available and appropriate.

Powers of attorney, if properly executed while the principal still has capacity, can provide for the management of financial affairs without court involvement. Health care directives can address medical decision-making. Trusts can provide for the management of assets by a trustee. Representative payees can be appointed for Social Security and other government benefits. Supported decision-making arrangements can allow an individual to retain decision-making authority with the assistance of trusted advisors.

Whether these alternatives are appropriate depends on the individual's specific circumstances, including their level of capacity, the nature and extent of their assets, the availability of trustworthy family members or advisors, and the specific risks they face. The firm can help evaluate whether a guardianship or conservatorship is necessary or whether a less restrictive alternative would adequately protect the individual's interests.

If you have questions about a guardianship or conservatorship matter in Mississippi, the inquiry form is the best place to start.