September 1, 2010

Guardianship Jurisdiction: The Human Face Behind a New Uniform Law

By Erica Wood

Experienced practitioners of probate, family, and elder law know that increasingly cases cross state borders. That is so with adult guardianship.

Two siblings in different states battle over care of mom and control of her estate—and file guardianship petitions in competing states. Or a parent who is guardian of an adult child with intellectual disabilities retires and moves to a Sunbelt state yet can ill afford to initiate a new proceeding in the new state. Or a guardian needs to send an incapacitated person for medical treatment just across the state line. 

Consider this scenario from the Alzheimer’s Association’s May 2010 “Adult Guardianship Jurisdiction: Factsheet”:

Jane cares for her mother who has dementia in their home in Texas. A Texas court has appointed Jane as her mother’s legal guardian. Unfortunately, Jane’s husband loses his job, and Jane and her family move to Missouri. Upon arriving in Missouri, Jane attempts to transfer her Texas guardianship decision to Missouri, but she is told by the court she must refile for guardianship under Missouri law because Missouri does not recognize adult guardianship rights made in other states.

There are many like Jane as the population ages, as Alzheimer’s disease increases, and as our society becomes more mobile. Judges are left with jurisdictional quandaries that take up vast amounts of time and resources. Families, already burdened with care, cannot sustain the expenses of extended judicial proceedings just because more than one state is involved. Attorneys must navigate a thicket of different laws and court practices, at high cost to clients.

Some of the high-profile cases have been spotlighted nationally. There was the case of Mollie Orshansky, in which Adult Protective Services filed a guardianship petition in the District of Columbia, but elderly Orshansky’s niece, the agent under her advance directive, removed her to New York, and filed a guardianship petition there (In Re Orshansky, 804 A.2d 1077 (2002)).

There was the much publicized case of Lillian Glasser, who was a lifelong New Jersey resident who visited her daughter in Texas. She became the subject of a highly contested proceeding when the daughter filed a guardianship petition in Texas based on her mother’s presence in the state, causing Glasser to remain away from her home and eating up millions in legal fees (Matter of Glasser, 2006 WL 510096 N.J. Super. Ct. Ch. Div. (2006)).

And more recently there was the tangled case of Loyce Juanita Parker in which an elderly incapacitated woman was caught between two feuding adult children as competing battles were waged in Texas and Oklahoma courts with multiple attorneys and experts, at high cost (In the Matter of the Guardianship of Loyce  Juanita  Parker, 189 P.3d 730 (2008)).

There must be a better way. And there is. The Uniform Law Commission has developed a Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Often known by its acronym, UAGPPJA (U-A-GAP- JA), the act seeks to clarify jurisdiction and provide a procedural roadmap for addressing dilemmas in which more than one state is involved. It also encourages communication and cooperation between courts in different states. The act’s title and the topic seem arcane and dry, yet the human face is compelling. The act offers a way out for distraught families, strained courts, and frustrated attorneys.

What the New Uniform Act Does

The act offers a uniform mechanism to address cross-border adult guardianship issues. First, the act facilitates transfers of guardianships among jurisdictions through a simplified two-state procedure. This procedure avoids the need to completely relitigate a case in which there are no controversies or objections, and protects persons and their property from potential abuse. If both states have adopted the act, filings are made in both courts, and when both have agreed that the guardianship can be transferred, the first state terminates the guardianship and the second state accepts it. If there are objections, they can be brought to the fore and dealt with expeditiously at the time of the filings, rather than festering at a later point.

Without this sound two-state procedure, families would have to either go through a whole new hearing including proof of incapacity—or perhaps continue reporting to the old state long after they have moved and lost connections there.

Second, the act provides for recognition and enforcement of an existing guardianship or protective proceeding in another state. It authorizes a guardian or conservator to simply register the order from the first state in the second state. No new and expensive proceeding is required. Thus, when a conservator must sell the protected person’s property in another state, the conservator can register the order and then proceed to make the property transfer, instead of initiating an extensive— and duplicative—process in the second state.

Third, the act offers a uniform way to resolve controversies about initial guardianship jurisdiction. These provisions, inspired by the Uniform Child Custody Jurisdiction and Enforcement Act, designate one state—and one state only—as the proper forum. This state will usually be the person’s “home state,” which in most situations will be the state where the person was last physically present, including any period of temporary absence, for at least six months before the filing of a petition. If there is no home state, if the court of the home state declines, or if it is an uncontested case where no objection to jurisdiction is raised, then the case can be heard by a court in a “significant connection state”—a state other than the home state where the person has the most significant connections and substantial evidence is available.

Enactment of the UAGPPJA prevents elder abuse— rendering “granny snatching” ineffective by removing presence as a determining factor for guardianship jurisdiction. It enables a court to decline jurisdiction because of “unjustifiable conduct” and to penalize perpetrators. The ABA Commission on Law and Aging has outlined “Nine Ways to Reduce Elder Abuse Through Enactment of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act” in an article on its website.

It is important to note that there are exceptions to the act’s rules about initial jurisdiction. In an emergency situation, a court in the state where the individual is physically present even if a short time can appoint a guardian, at least on a temporary basis. Also, if the individual has real or tangible property located in a certain state, the court in that jurisdiction can appoint a conservator for that property.

Just as important, the act facilitates communication and cooperation between courts of different jurisdictions. It permits communication between courts and parties of other states (and allows for records of the communications), and permits courts to respond to requests for assistance from courts in other states. Indeed, if both states have adopted the act, judges in two states can talk with each other about the case, preventing many tangled situations and unfair outcomes. It opens the door to dialogue about the problems of vulnerable at-risk individuals and their caregiver families.

Where Do We Stand  on  State  Adoption  of  the  Act?  The catch is that both states must have passed UAGPPJA to make things work. Because the act is jurisdictional in nature, it cannot function as intended unless all states enact it.

The good news is that so far 20 states have passed the act. In 2008, the first year after UAGPPJA approval by the Uniform Law Commission and the ABA House of Delegates, five states (Alaska, Colorado, Delaware, Utah, and the District of Columbia) quickly adopted the act. In 2009, eight additional states enacted it (Illinois, Minnesota, Montana, Nevada, North Dakota, Oregon, Washington, and West Virginia). Seven more states passed the act in 2010 (Alabama, Arizona, Iowa, Maryland, Oklahoma, South Carolina, and Tennessee). If you are in one of these 20 jurisdictions, congratulations—and it is time to learn about the act in more detail and understand how things will proceed.

What about the other 30-plus states? According to the Uniform Law Commission, the following 18 jurisdictions have indicated an interest in introducing the act, or in some cases already have introduced it: Connecticut, Florida, Georgia, Idaho, Indiana, Kansas, Maine, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Rhode Island, South Dakota, U.S. Virgin Islands, Vermont, and Virginia. If you are in one of these states, you and other senior lawyers must get on the band-wagon and advocate for enactment. Here is a case from the Alzheimer’s Association showing a success story where both states involved have enacted UAGPPJA:

Sarah, an elderly woman living in Utah, falls and breaks her hip. She and her family decide it is best that she recover from her injuries at her daughter’s home in Colorado. During Sarah’s stay in Colorado, her daughter, Lisa, realizes her mother’s cognition is impaired, and she is no longer capable of making independent decisions [or executing health care and financial powers of attorney]. Lisa decides to petition for guardianship in Colorado. Thankfully, both Colorado and Utah have adopted UAGPPJA, and the Colorado court can easily communicate with the Utah court. Following the rules established in UAGPPJA, the Colorado court asks the Utah court if any petitions for guardianship for Sarah have been filed in Utah. The Utah court determines that no outstanding petitions exist and informs Colorado that it may take jurisdiction in the case. Thus, although Utah is Sarah’s home state, Colorado may make the guardianship determination.

As Judge Mike Wood of Harris County, Texas, wrote to probate judges in a 2008 “Call to Action” in the NCPJ Life & Times, “No one who gives the subject very much thought will oppose the UAGPPJA. ‘No, I think it is better for the proposed ward and her family to spend $50,000 to $100,000 in attorneys’ fees fighting in two states over the ward’s care.’ The argument makes itself, but each of us needs to make the effort in our state to get the ball rolling.” Because you may see these cases regularly and will directly benefit in time and court resources saved, you can be persuasive with legislative committees and bar associations. Here are advocacy points and steps for senior lawyers to take:

  1. The act has no financial impact—and in fact will save money in the court’s budget. In these economic times, not many such worthwhile bills can make this claim!
  2. The act makes no change in a state’s substantive guardianship law. It is jurisdictional only. You keep those features of your state’s law to which the bench and bar are accustomed and which are working well.
  3. Judges and attorneys are likely familiar with the Uniform Child Custody Jurisdiction and Enforcement Act, adopted by nearly every state and working well to facilitate jurisdictional issues.
  4. Identify your state’s Uniform Law Commissioners to discuss enactment. See a list of your commissioners at www.nccusl.org (click “About NCCUSL” then “State Commissioners”).
  5. Get support not only from your senior lawyers section but also from other bar entities—trusts and estates or elder law sections or committees—as well as members of the National Academy of Elder Law Attorneys.
  6. Work with your state’s Alzheimer’s Association chapter. The Alzheimer’s Association has made enactment of UAGPPJA one of its state legislative priorities, and its state public policy coordinators are ready to play a key role.
  7. Connect, as well, with your state’s AARP office and state Agency on Aging Also, some 20 states have guardianship associations affiliated with the National Guardianship Association.
  8. Be on the lookout for cases that would demonstrate the benefits of the act in your state. Real-life stories are very compelling to legislators.
  9. Consult the website of the Uniform Law Commission where you will find the full text of the act with commentary and an updated bill tracking list under “Final Acts & Legislation.

ABA Support

Strongly supportive of the UAGPPJA from the beginning, the ABA had advisors to the act’s drafting committee. The ABA House of Delegates approved the act at its February 2008 meeting. The ABA Commission on Law and Aging launched a Joint Campaign for Uniform Guardianship Jurisdiction, funded by the ABA Section of Real Property, Trust and Estate Law, the American College of Trust and Estate Counsel Foundation, and the Uniform Law Foundation. The Joint Campaign compiled a table of reported cases on adult guardianship jurisdiction issues, a chart of multistate guardianship stories, and other resources. See www.abanet.org/aging and click on “guardianship jurisdiction.” Now is the time for Senior Lawyers Division members to voice support and work for passage! 

Erica Wood is assistant director of the ABA Commission on Law and Aging. This is based on an article Wood wrote with Sally Hurme, “Uniform Guardianship Jurisdiction: Where Do We Stand? A Brief Update on the UAGPPJA,” published in NCPJ Life & Times, National College of Probate Judges, Vol. 6, No. 2, Fall 2009.