Transfer of Guardianship to New State Should Be Easy

DECEMBER 9, 2013 VOLUME 20 NUMBER 46

We have written before about transferring a guardianship or conservatorship to Arizona, or out of Arizona, when the subject of the proceeding moves to another state. In fact, Arizona has joined a number of other states (that number, incidentally, currently stands at 37 states, plus the District of Columbia and Puerto Rico) in adopting something called the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act — the UAGPPJA. A mouthful of a title, but a simple goal: it should be easy and inexpensive to move your Arizona guardianship to Arkansas, or to Alaska, if you and your ward move to one of those states.

One key element of the UAGPPJA’s efficiency goal involves each state’s courts giving up a little tiny slice of control. Guardianship and conservatorship proceedings are often tightly controlled by local judges, and for good reason. But the logic of the UAGPPJA says that when the local judge in another state has decided whether a guardian or conservator is needed, and who should be appointed, the local judge in the new jurisdiction should be able to take that determination at face value. That means no expensive proceeding to evaluate the proposed guardian and conservator, no additional imposition of costly proceedings or even appointment of investigators, medical examiners and attorneys — unless there is good reason to suspect that something is amiss.

That’s the theory, but the devil, as usual, is in the details. A recent Alabama case may be the first appellate court decision to address how the UAGPPJA should work, and that state’s Supreme Court comes down squarely on the side of efficiency and ease of administration.

Roberta Smith (not her real name) filed a guardianship and conservatorship proceeding regarding her mother Susan in 2010. Both Roberta and Susan lived in Kentucky at the time, and so she appropriately filed her petition in Kentucky courts. After notice was given and a hearing held pursuant to Kentucky’s normal appointment process, Roberta was appointed as her mother’s guardian and conservator.

Roberta then moved to Alabama, and took her mother with her. She wanted to transfer the guardianship to their new state, and it should have been easy — both states had adopted the UAGPPJA. The process requires several steps, but it is mostly clerical in nature. First Roberta had to get the Kentucky court’s permission to initiate the transfer, then get the Alabama court’s permission to make the transfer, then go back to Kentucky to show that the Alabama proceeding was underway, then once more back to the Alabama courts to accept final transfer. The UAGPPJA intends that the result would then be that Alabama had jurisdiction over the guardianship and conservatorship, and Kentucky could close its file on the matter.

But the Alabama probate judge had a different idea. He wanted to make sure Roberta was a suitable guardian and conservator, and that she was making decisions properly. So he appointed a guardian ad litem (a GAL, in lawyer lingo — which is not a comment on the appointee’s gender) to investigate and to represent Susan’s interests in the transfer proceeding. Months later the GAL reported that, while Roberta hadn’t done anything wrong, she thought the public guardian would be a better choice to make decisions for Susan. The probate judge agreed and appointed a new guardian and conservator.

Roberta appealed, arguing that the UAGPPJA was supposed to allow transfer of proceedings, not relitigation of issues already decided. Meanwhile, as an aside, the public guardian recommended that the GAL could be appointed as guardian for Susan, and the probate court went along — turning Susan’s lawyer into her decision-maker for health care and placement decisions, and raising more questions about the Alabama proceedings.

The Alabama Supreme Court looked over this record, reversed the probate judge and sent the entire matter back for entry of an order transferring the Kentucky proceedings to Alabama. The UAGPPJA does not permit the receiving court (Alabama, in this case) to make a new determination about who ought to be guardian and conservator, but only to transfer the existing guardianship and conservatorship. Of course, once the transfer is completed the new court has jurisdiction, and could review the actions of the guardian and conservator, direct her to handle things differently and even remove her and appoint a new person — but that would be a separate proceeding. Sears v. Hampton, November 22, 2013.

The Alabama case, though it deals with an issue near and dear to our lawyers’ hearts, will probably not have a large impact on guardianship and conservatorship across the country. But it does reflect a change in the way the world works. Twenty years ago it was relatively rare to see a guardian or conservator move — with the ward — to a new state, and the law was unsettled about how to handle such a switch. Most of the time the guardian/conservator would be required to file a new petition in the new state, incur significant legal expenses and hope to get appointed. Once appointed, they could go back to the original state, show the new state’s appointment, and ask to have the first state’s file closed.

But each state probate judge might have a different idea about who should act, what they should do, and what were reasonable decisions. There was the regular concern that the two courts might enter conflicting orders, or that the first state’s judge might object to the second state proceeding even being initiated, or that the second state’s judge might refuse to act while the first state still had jurisdiction. Our society grows more mobile every year, and these problems become more complicated. The UAGPPJA was intended to help simplify this process, and now it has — at least in Alabama. We would like to think that it will also simplify things in Arizona, Arkansas, Alaska and all the states that don’t even start with “A”.

For extra credit: is this the first appellate decision to interpret the UAGPPJA? It could be. In Hetman v. Schwade, a concurring justice in one of the other “A” states (Arkansas) strongly suggested that his state’s legislature should adopt the UAGPPJA — and they took him up on the suggestion two years later. The Tennessee Court of Appeals, in a July 13, 2013, decision (In re Proposed Conservatorship of Stratton), makes a passing reference to the UAGPPJA — but only to note that the appellant failed to preserve any argument she might have under the Act. So we think this Alabama case is in fact the first appellate interpretation of the Act.

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