Lawyers Journal

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) – Its time has come

One of the legislative priorities of the Massachusetts Guardianship Association is the enactment of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA, the "Guardianship Jurisdiction Act").

Following the lead of the National Guardianship Association, the American Bar Association Commission on  Law and the Elderly, the AARP, the National Academy of Elder Law Attorneys and the Alzheimer's Association, not to mention the Massachusetts and Boston Bar Associations, we recognize that the Guardianship Jurisdiction Act is proposed legislation whose time has come.

Because the Guardianship Jurisdiction Act will bring clarity and predictability to guardianship cases in which more than one state is involved, and will not come with an expensive price tag, we are hopeful that it will be seen by our legislators as a "no brainer," a win-win situation benefitting incapacitated persons, their families, fiduciaries and even, perhaps especially, the courts, who now struggle with unanswerable questions.

Nationally, elder and disability advocates have written about the disturbing trends of "grandparent snatching," in which family members take elders from one state to another, often motivated by anything but the well being of the elder. The classic case is the Glasser1 case, where a grandmother was the subject of guardianship proceedings in three different states -- and her estate subject to legal fees in the millions of dollars.

It is not just the growing number of notorious cases which invite the adoption of the Guardianship Jurisdiction Act, however, but rather the recurring questions -- often without real answers -- when a guardian must move an incapacitated person from one state to another, or must chase the person who has relocated the individual and now seeks competing authority from a court in another jurisdiction. The Guardianship Jurisdiction Act, a product of the Uniform Law Commission (ULC - also known as the National Conference of Commissioners on Uniform State Laws -- NCCUSL), is designed to address the competing issues and the potential conflicts.

If adopted (as opposed to adapted) by the states involved in any given proceeding, the act will provide a welcome measure of uniformity -- everybody should be able to understand "the rules."

Problems arise in three basic areas:

Initial jurisdiction: Where to begin a proceeding when there is more than one possible court of competent jurisdiction.

Recognition of authority of fiduciary:
How to convince a state court to recognize or enforce a fiduciary's authority decreed in the court of another state.

Transfer: How to move a case from one state to another

Initial jurisdiction

On the theory that only one state should exercise jurisdiction at a time, there is a preliminary determination of the individual's "home state" and any "significant connection state (or states).  The home state is where the individual lived for at least six consecutive months immediately before commencement of a guardianship or protective proceeding. A significant connection state means the state in which the individual has a significant connection other than mere physical presence, or where substantial evidence concerning the individual is available.

The default is to the home state, unless it has declined jurisdiction in favor of the significant connection state. Any state in which the individual is physically present has jurisdiction to appoint an emergency guardian if an urgent situation exists.

Recognition of authority of fiduciary

Generally speaking, guardianship law is an exception to the full faith and credit doctrine, and, while most states have some process for a conservator to transact business in another state (usually an administrative filing of an order), few states have any process to recognize the authority of a "foreign" guardian. The Guardianship Jurisdiction Act authorizes registration of the order/decree in the recording office of another state.

Regardless of whether the order has been registered or not, however, the court of the other state must give full faith and credit to the order decreed by state court which took jurisdiction.

Transfer

Where a transfer is necessary, instead of the current usual scenario -- the procedures of an initial appointment must be repeated -- the procedure is for two courts to enter orders, one giving up and the other taking jurisdiction of the case.  The "new" court must give full faith and credit to the order of the "old" court, and jurisdiction is complete when the individual is physically located in the "new" state.

The court transferring the case must find (1) the move of the individual under guardianship is permanent; (2) there is no objection or any objection has failed to establish that the transfer is contrary to the individual's interest; (3) the plans for the individual in the new state are reasonable and sufficient; and (4) the proceeding will be accepted by the court to which the proposed transfer is to be made.

Additional selling points: In M.G.L. chapter 190B sections 5-101 et seq., Massachusetts codified the Uniform Adult Guardianship and Protective Proceedings Act, so that we are familiar with the terminology of the Guardianship Jurisdiction Act.  The Guardianship Jurisdiction Act is modeled after the Uniform Child Custody and Enforcement Act, which has been functioning for some time and was adopted by Massachusetts in 1983 (M.G.L. c. 209B).

Any state which has adopted the Guardianship Jurisdiction Act must recognize and enforce a guardianship or conservatorship of a foreign country where the facts conform to the act except to the extent that such an order violates fundamental principals of human rights.

Current status: As of this  writing, the Uniform Adult Guardianship and Protective Proceedings  Jurisdiction Act, which the Massachusetts Bar Association supports, was  pending in the Legislature and expected to be reviewed by the Joint Committee  on the Judiciary.

For more information, go to www.nccusl.org or www.abanet.org/aging/guardianshipjurisdiction.

1In the GUARDIANSHIP OF Lillian GLASSER, an Incapacitated Person, No. 04-07-00559-CV. (Tex. App. 2009)

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