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
Problems arise in three basic areas:
Initial jurisdiction: Where to begin a proceeding
when there is more than one possible court of competent
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
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
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
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.
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
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)