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July 01, 2013

Interstate Guardianship Issues

Benjamin Orzeske

(Note: For a footnoted version of this article, please download the pdf issue of BIFOCAL Vol. 34, Issue 5.)

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) was first presented to state legislatures in 2008, with the goal of universal enactment. Today UAGPPJA is the law in 36 states, plus the District of Columbia and Puerto Rico. As of this writing, a bill to enact UAGPPJA sits on Governor Cuomo’s desk, and New York State is poised to become number 37.

The Current System: A Sample Scenario
Why is UAGPPJA necessary? Imagine this nightmare scenario: You’re a widow who has lived your whole life in Oklahoma. Your late husband set up a trust to ensure your care, and your son who lives nearby is the trustee. When you need long-term care, you decide to move into a facility near your home but you’re put on a waiting list until space becomes available. In the meantime, your son arranges for your care at another facility in the Texas town where your daughter lives.

A few months later, space opens up at the Oklahoma facility and your son arranges to move you back to your hometown. However, your daughter is unhappy with your son’s control of the trust estate. Before the moving date, she files an application with the Texas court seeking permanent guardianship over you and your estate. After you return to Oklahoma, your son applies for guardianship with the Oklahoma court. Both courts approve conflicting orders. Using her authority under the Texas court’s order, your daughter moves you back to Texas against your wishes.

Unfortunately, there is no need to imagine this scenario—it actually happened. The children of Loyce Juanita Parker litigated her guardianship in the courts of both Texas and Oklahoma over a period of three years, at significant financial cost to the estate. Despite her late husband’s careful planning, Ms. Parker was caught in legal limbo because the law allowed both courts to assert primary jurisdiction.

How the UAGPPJA Will Help
UAGPPJA prevents jurisdictional conflicts in adult guardianship cases. Seniors who maintain a home in more than one state or who have children living in different states are especially vulnerable to this type of dispute. However, the full benefit of UAGPPJA cannot be realized unless both states involved in a conflict have adopted the act. Therefore, advocates including the ABA Commission on Law and Aging, AARP, and the Alzheimer’s Association are working actively to enact UAGPPJA in the remaining states. The American Bar Association strongly supports enactment.

UAGPPJA gives primary jurisdiction to an individual’s home state—defined as the place where the individual was physically present for at least six consecutive months (including any period of temporary absence) immediately before the filing of a petition for appointment of a guardian, or if none, the state where the individual was present for six consecutive months ending within the six months prior to the date the petition was filed. A state where the individual has a significant connection (other than mere physical presence) may exercise jurisdiction only if there is no order pending in the home state and all interested parties have received notice and an opportunity to object, or if the home state has declined jurisdiction because the other state is a more appropriate forum.

UAGPPJA also facilitates the transfer of guardianships when, for example, the guardian’s job requires moving to another state. If there is no objection, the courts of both states can agree to transfer jurisdiction to the guardian’s new home state, thus avoiding the time and expense associated with a new legal proceeding. Finally, the Act makes it easier to enforce guardianship orders in other states through a simple registration process.

Although UAGPPJA has been widely adopted, seniors in thirteen states are still vulnerable to the type of jurisdictional conflict that affected Ms. Parker. Advocates will continue working for reform until universal enactment has been achieved. ■

Benjamin Orzeske

About the Author: Benjamin Orzeske is Legislative Counsel at the Uniform Law Commission in Chicago, IL. For more information about UAGPPJA, he can be contacted at at: (312) 450-6621 or [email protected].