INCREASING IN FREQUENCY
Guardians across the country are beginning to grapple with a larger phenomena of life in these United States: that we are a mobile society. Many times these decisions are made by legally competent adults who have the right to decide where they want to live. When it comes to the decisions of an older population, those decisions are animated by such things as access to good health care, location of relatives and loved ones as well as climate and quality of life. Many of those same elderly citizens who move are only in their current location because they may have recently retired and that is where they worked for several decades. Family and home may be elsewhere. It is very common for people to have family that they are close to strewn out across the country, allowing such people a number of locations and climates to chose from. These same facts and drives also apply to people who are involved in adult guardianships. It is not uncommon for these individuals to move from one jurisdiction to another to obtain specialized treatment. With an aging population, these issues are only increasing in frequency.
One would assume that a Court in one state would honor a judgment of guardianship from another. After all the federal Constitution requires states to grant full faith and credit to the judgments of sister states. Often this is the case, but not always. Different standards apply in different states and questions and concerns may arise when one state’s laws require a guardianship to be vacated when the original state contemplated that it would last for life due to the first state’s different laws and the guardian made plans accordingly. How does that influence the issue of continued care? How does the lack of capacity of the protected party affect the decision of the Court? Moreover, when does one state assert jurisdiction and the other relinquish? Courts cannot enter an Order without jurisdiction. Some nightmare scenarios could play out, as they did in the Alabama case of Sears v. Hampton in 2013, without some basic standards to tell Courts how to measure its decisions.
For all these reasons and others, the American Law Institute created the Uniform Adult Guardian and Protective Proceedings Jurisdiction Act. New York’s Governor Cuomo signed the law when the New York legislature adopted the Act in substantial parts in 2013. The primary goal of the UAGPPJA is to:
- To identify one court to hear and decide first guardianship petitions; and
- to create a system to allow the transfer of appointed guardians from one state to another; and
- to allow for the recognition and enforcement of existing guardianship Orders from one state to another.
Some of the key features of the law center on which state the protected party has the most significant connections to determine “home state” in the event that there is an issue with jurisdiction. Various factors such as voter registration location, location of property the amount of time spent in the jurisdiction and if it was voluntary (due to a medical emergency for example) as well as the location of other family members or those who may help serve as guardians for the alleged incapacitated individual. Since 2007, 38 states adopted the UAGPPJA in whole or substantial parts, which is a high number in such a short period of time. It seems likely that this trend will continue, although only time will tell.