APRIL 3, 2000 VOLUME 7, NUMBER 40
When a family member or friend becomes incapable of handling his or her own health care and finances it may be necessary to turn to the courts. Guardianship and conservatorship proceedings are governed by state laws, and the assumptions, procedures and even the language change from state to state. With an increasingly mobile and fragmented society, interstate conflicts are more commonplace in recent years.
Judges have often been inclined to believe that no other state’s courts could be as concerned about the welfare of the court’s wards. As a result, it has sometimes been difficult to secure court permission to move a frail relative to another state to be near family.
While it might seem anachronistic in an age of instant long-distance communication and easy interstate travel, such parochialism is alive and well in state courts today. Consider, for example, the Minnesota Supreme Court’s decision regarding Dorothy F. Brady.
Ms. Brady, now age 73, has lived in Minneapolis for 34 years. She has six children. Her daughter Maureen lived in the family home with her until Maureen married and moved to Pennsylvania. Ms. Brady’s son Timothy then moved in with her for a short time, until she moved to her son Daniel’s home for a few months before moving to Pennsylvania to live, once again, with daughter Maureen. After a Minnesota conservatorship proceeding was begun, the court ordered that Ms. Brady return to Minneapolis to reside in an assisted living facility.
Anthony Roszak, a non-family member appointed as conservator, was instructed by the court to determine where Ms. Brady should live. Initially he decided that she should remain in the assisted living facility, but he permitted her to visit Maureen in Pennsylvania. Mr. Roszak visited Maureen’s home during that visit, and decided that Ms. Brady could continue to live with her.
Ms. Brady herself expressed a desire to continue to live with her daughter in Pennsylvania, so it may have seemed like an easy decision. The Minnesota judge, however, disagreed and ordered that she once again return to Minnesota. The conservator, Ms. Brady (through her attorney) and son Timothy all appealed; another daughter responded, arguing that Ms. Brady should reside in Minnesota.
The state Supreme Court affirmed the order requiring Ms. Brady’s return to the assisted living facility (or, since her condition had apparently worsened during the litigation, to a nursing home in Minnesota). The court pointed to her long Minnesota residency and the fact that more of her children were in Minnesota than in Pennsylvania. It rejected daughter Maureen's argument that living with family members is always less restrictive than institutionalization (Maureen, said the court, had "pointed to no specific facts in the record supporting their argument"). Finally, the state Supreme Court justices agreed with the lower court that Ms. Brady’s wishes could be ignored, since she is incapacitated. Conservatorship of Brady, March 30, 2000.