Posts Tagged ‘guardianship across state lines’

Young Man’s Father Secures Guardianship After Summer Visit

Sometimes a legal proceeding in another state can help illustrate the procedures in your own state — because they are different. A guardianship case in Georgia last week is a good example.

Melvin Peters (not his real name) is twenty-one years old, and he lives with his father in Georgia. Melvin has an autism diagnosis, which he first acquired when he was three. When Melvin was twelve, his mother was given custody in a North Carolina proceeding.

Every summer Melvin traveled to his father’s (and stepmother’s) home in Georgia for a long visit. That arrangement apparently worked well, until last summer. Melvin (then twenty) refused to return to North Carolina.

At the end of last summer, Melvin’s father filed a guardianship petition in Georgia. He alleged that Melvin need a guardian appointed; though he could make some of his own decisions, his father insisted that he “needs ongoing guidance.” Melvin’s court-appointed attorney met with him, confirmed that he wanted to live with his father, and reported to the court that it would be in Melvin’s best interest to stay with his father in Georgia.

Melvin’s mother objected, and argued that the Georgia courts did not even have jurisdiction. She argued that he was really a resident of North Carolina, and any guardianship proceeding should be brought there.

The Georgia court disagreed, and proceeded to appoint Melvin’s father as his guardian. Melvin’s mother appealed, and the Georgia Court of Appeals upheld the order. Melvin will, according to the court, continue to live with his father in Georgia. Estate of Pond, September 27, 2016.

How would Melvin’s case be different in Arizona? In several ways.

First, Arizona has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA). That law mandates that a guardianship not be brought in a state where the proposed ward has lived less than six months (except in limited circumstances, none of which look like they would apply in Melvin’s situation). Well, actually, Georgia has also adopted the law — but not until this Spring. It became effective in Georgia on July 1, 2016 — well after the ruling in Melvin’s case.

The UAGPPJA is intended to reduce or eliminate guardianship filings in states where the subjects of the proceedings are just visiting. More importantly, it is intended to keep family members from taking an incapacitated person back to their home state before filing court proceedings. It has been adopted in almost every state (Florida, Texas, Kansas, Wisconsin, and Michigan are holdouts).

Another difference: in Arizona, as of August of this year, any custody order for a minor child would create a presumption about the child’s best interests after they turned eighteen. If Melvin’s father lived in Arizona, that would mean that he would have to show why the earlier custody arrangement needed to be modified, and the court would look to Melvin’s mother as the presumptive guardian.

Of course, if Melvin’s father had filed a similar proceeding in Arizona a year ago, that new law would not have been in place. Still, prior custody orders are supposed to be attached to any guardianship petition, and the guardianship court would probably have wanted to know why the same arrangement should not be continued after the incapacitated child’s majority.

That raises another likely difference: Arizona’s preference for limited guardianship. Although it is hard to be certain from the court’s description of Melvin, it seems likely that he would be viewed as pretty much able to make his own personal decisions in Arizona. If a guardian was appointed, it might well be a “limited” guardian — meaning that Melvin would be able to make his own decisions about where he lived (and who he lived with), and maybe even about his own health care decisions.

In fact, Melvin sounds like he might be a good candidate for the emerging notion of “supported decision-making“, under which he might avoid the guardianship process altogether. Arizona has no formal supported decision-making statutes — yet. That might well change as the system slowly shifts toward more autonomy and dignity for subjects of guardianship and conservatorship proceedings.

Would Melvin’s story have played out the same way if he had spent the summer with his father in Arizona? Almost certainly. But then he would have been spending his summers in Arizona, and that does seem unlikely.

Maine Guardianship Violates Uniform Jurisdiction Act

JULY 25, 2016 VOLUME 23 NUMBER 28
Before any guardianship or conservatorship action can be filed in a local court, the court must have jurisdiction over the person subjected to the proceeding. For many decades that had meant (more or less) that the person must be physically present in the state, and not much more. That began to change in 2007, with the proposal, and quick adoption in most states, of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA).

Arizona, for instance, adopted the UAGPPJA in 2010. It has now been adopted by 45 states (plus the District of Columbia and Puerto Rico); the holdout states are Florida, Kansas, Michigan, Texas and Wisconsin. The law is intended to address, among other things, the problem of interstate disputes among family members — and especially to prevent warring family members from gaining tactical advantage by moving incapacitated family members involuntarily to a new state before filing a court proceeding. It received much of its impetus from the celebrated case of Lillian Glasser, whose family and friends fought over where to file her guardianship proceeding. In that regard, it is mildly ironic that one of the remaining states not adopting the UAGPPJA is Texas, where half of Ms. Glasser’s disputed guardianship case played out. Ms. Glasser herself, incidentally, died in her Florida home in 2011 — in yet another one of the few states not yet adopting the UAGPPJA.

The UAGPPJA actually addresses other, more mundane issues, as well. It establishes a mechanism for transferring guardianship proceedings to a new state when the subject of the proceedings moves. It also makes it easier for guardians (and conservators) to establish their authority in states other than the one in which the proceedings are filed. All that should make management of guardianship easier — even across state lines.

Despite its adoption in almost every state, there is precious little case law interpreting the UAGPPJA. A recent case out of Maine adds to the interpretation of the law, and helps reinforce the principles that gave rise to its adoption.

What should happen, then, when a person who needs a guardian travels across state lines, and comes to the attention of the court in a state where they do not live? If they got to the new state by the acts of a family member seeking advantage, it seems easy to answer that the family member’s misbehavior should not be rewarded. But what if there was no misbehavior — and, indeed, no family member or friend involved?

That is the dilemma that faced the Maine probate court in the case of Henry Smith (not his real name). Henry had lived for years in California. After he had a stroke in 2012, he was partially paralyzed. In an apparent attempt to get back to his original hometown in Canada, he sold his house in California and traveled across the country. He spent time in Washington State, Arizona, New Mexico and Georgia before arriving in Maine one day in 2013.

Henry checked into a hotel in Portland, Maine, and asked the staff to help him with transfers from his wheelchair to bed and to the toilet. After they worked with him that first night, the hotel staff became concerned about his ability to take care of himself, and called the police.

Portland police visited Henry, decided he was unable to make his own decisions, and took him to the psychiatric unit at a local hospital. From there, Henry was involuntarily committed for mental health treatment and then released to an assisted living facility — but not before a guardianship proceeding was initiated.

Because Henry had no family, friends or even acquaintances in Maine, the probate court appointed the public guardian to manage Henry’s placement and care. The court did give Henry some autonomy to make at least some of his personal decisions, but the public guardian was ultimately in charge of where he would live, whether he could return to either Canada or California, and what medical care he would receive.

Henry appealed his guardianship, and the Maine Supreme Court agreed with his objections. The UAGPPJA, ruled the Court, allowed an emergency guardianship order in Maine, but only for a six-month period. Since the guardianship had by that time already been in place for almost two years, the UAGPPJA’s jurisdictional limitations had already been violated. The Court did give the public guardian forty-five more days to figure out where Henry should be cared for. Guardianship of Sanders, July 7, 2016.

Does that mean that Henry must be released by Maine to continue his travels toward Canada, regardless of how ill-advised that plan might be? Not necessarily. The UAGPPJA requires that a person’s “home state” should have priority to act — and that means that California (his original home) should be given the chance to take responsibility for Henry’s decision-making. But if California declines or refuses to act, Maine courts may once again have the authority to continue the guardianship.

By our count, this is just the third appellate decision relying on the UAGPPJA (the other two were in Arkansas in 2009, and Tennessee in 2013). It seems that the mere existence of the law has significantly reduced the abuses that seemed so widespread when we first wrote about Lillian Glasser’s case back in 2007.

Transfer of Guardianship to New State Should Be Easy


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.

Appellate Court Upholds Orders in New Jersey/Texas Guardianship

JULY 25, 2011 VOLUME 18 NUMBER 27
We have told you about Lillian Glasser before. She is a wealthy New Jersey woman with two children who disagree about where she resides, who should manage her health care and finances, and what should be done about financial actions taken in the months before court proceedings were begun. Much of the dispute centers over whether Texas or New Jersey courts should hear her case. That issue seems to have been put to rest, with New Jersey the victor.

To recap: Ms. Glasser, then worth about $25 million, lived in New Jersey. She occasionally visited her son in Florida (where she also had a rented home) and her daughter in Texas. In 2002, Ms. Glasser was persuaded to execute a new estate plan. She signed a will putting her daughter in charge of her estate, and a new power of attorney in favor of her daughter.

In 2004 and 2005, Ms. Glasser’s daughter fired her mother’s caretaker in Florida, moved Ms. Glasser to Texas, and initiated a Texas guardianship proceeding. In the meantime, she used her power of attorney to create a family limited partnership which she controlled, and transferred the bulk of her mother’s assets into the partnership’s name.

The Texas guardianship proceeding spawned a variety of legal actions. Ms. Glasser’s son, a nephew who was close to her and a family friend all objected in Texas. The litigation costs in Texas exceeded a million dollars, with much of the cost being paid from Ms. Glasser’s assets. The result: the Texas courts authorized her return to New Jersey, where there was more legal action pending.

After Ms. Glasser’s nephew filed a separate New Jersey guardianship proceeding, that state’s Adult Protective Services agency weighed in with a complaint alleging that Ms. Glasser had been subjected to exploitation. Those two actions were consolidated. Meanwhile, the Texas courts decided to wait until New Jersey had completed its review of Ms. Glasser’s situation.

In 2007 the New Jersey court held a 34-day trial on Ms. Glasser’s condition, the transfers of her assets, and the actions of the various players. The result: a judgment finding that Ms. Glasser’s daughter exercised undue influence and behaved in her own interest rather than her mother’s best interest, ordering return of all of the assets transferred into the family limited partnership, and appointing a bank as guardian of Ms. Glasser’s estate and an independent party as guardian of her person. That ruling was the subject of our 2007 update on the Glasser litigation. Ms. Glasser’s daughter appealed that ruling, as did two of the other litigants; much of the appellate argument focused on who should pay the extensive legal costs of the proceedings. The New Jersey Superior Court Appellate Division (that state’s intermediate appellate court) has now — four years after the original court findings — ruled on those appeals.

Spoiler alert: the appellate court affirmed the extensive trial court decision without modifying a single finding or order.

The appellate judges approved the trial judge’s finding that Ms. Glasser’s daughter had exercised undue influence over her mother. They agreed that she should be ordered to put all of her mother’s assets back into Ms. Glasser’s name, to be managed by the bank named as guardian of her estate (what we in Arizona would call her conservator). They confirmed the daughter’s history of inappropriate and evasive actions with regard to Ms. Glasser’s placement and care, and agreed that she was not suitable to manage her mother’s personal OR financial matters.

Then the appellate judges turned to the extensive fees incurred in the various legal proceedings in two states. They confirmed the trial judge’s decisions that:

  • Ms. Glasser’s daughter should pay her own legal fees in both New Jersey and Texas. That meant that she would have to repay the money she had taken from her mother’s assets to fund the Texas proceedings, for which she had paid her attorneys at least $1 million.
  • Ms. Glasser’s estate should pay the legal fees of the lawyer she selected to represent her (the court having found that she had the capacity necessary to hire an attorney of her own choosing). It should also pay the legal fees of her nephew, who filed the guardianship action in New Jersey, without forcing her daughter to reimburse those fees.
  • Ms. Glasser’s son argued that his mother’s estate should pay most or all of his legal fees; the trial judge decided that it would not order her to pay all of his legal fees in Texas, and that (since he hadn’t filed a guardianship petition in New Jersey) he was not entitled to reimbursement for his New Jersey expenditures. The appellate judges agreed, noting that his sister had no standing to object to the amounts allowed in any case.

In the Matter of Lillian Glasser, July 21, 2011.

So how much did Ms. Glasser’s legal predicament cost her, and what was the total cost paid by all of the litigants in protracted proceedings in two states? It may be impossible to calculate exactly, but it is obviously several millions of dollars — after all, her daughter’s legal fees in Texas alone exceeded one million dollars.

Assuming (and the evidence is good) that the outcome is correct, was there a way to prevent the absurd expenditure of millions of dollars, the delay of half a decade, and the angst and anguish associated with this case? A few things might have helped:

  • A carefully created and well-documented estate plan, drafted at a time when Ms. Glasser was clearly competent, might have headed off some of these problems. It might not, however. Ms. Glasser did have an estate plan in place in 2002, at a time when she was competent to make her plans. Her daughter’s undue influence and over-reaching upset that plan over the next few years.
  • If both Texas and New Jersey had adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act prior to 2005 then considerable cost might have been avoided. That Act would have made clear that New Jersey had jurisdiction and Texas should not act — the very conclusion that the respective judges reached, though only after more than a million dollars in legal fees. Unfortunately, the Jurisdiction Act did not exist in 2005. Since it was first proposed in 2007, about two-thirds of the states have adopted it (including Arizona). So far neither Texas nor New Jersey has. In fairness, adoption of the Jurisdiction Act might have sped the proceedings up by only a few months, and saved only a fraction of the many millions of legal costs.
  • Mediation of the family disputes might have been effective — but it might not have. The appellate judges made reference to Ms. Glasser’s son adopting a “‘take no prisoners’ approach to anyone who disagreed with his views.” Her daughter’s intransigence is pretty clear from her actions and her legal posture. Perhaps they could not have ironed out their differences.


Despite Guardianship, Ward May Have Capacity to Marry

MAY 2, 2011 VOLUME 18 NUMBER 16
We have written in previous installments about differing state laws regarding the ability of a guardian (of the person) or conservator (of the estate) to file a divorce proceeding “for” an incapacitated adult. The question that comes up more often from our clients is a little different, though. In its most direct form, it might be phrased like this: “if I get a guardianship over my demented mother, will that prevent her from getting married without my permission?”

The exact dimensions of the question, of course, vary with each asking. Sometimes there is familial anxiety about a late-life romance blooming in the assisted living facility or nursing home where a parent has been placed. Sometimes the concern is over a developmentally disabled 17-year-old about to acquire, at least theoretically, the legal right to make foolish decisions. Sometimes the question is focused on a particular dangerous suitor, and sometimes it is more generalized.

The short answer to the question: the mere fact of a guardianship probably will not prevent the ward from getting married, or the marriage from being determined to be valid. The level of capacity required to enter into a marriage agreement is not exactly the same as the level of capacity required to make one’s own placement or medical decisions — or even to enter into other kinds of contracts. But the facts underpinning the guardianship proceeding are likely to be the same facts utilized in any later challenge of the validity of a marriage.

Take the recent example of Christopher C. Oakley, who lives at Lamplight Village, an assisted-living facility in West Plains, Missouri. Mr. Oakley suffered a childhood traumatic brain injury in 1986, and has required supportive assistance with bathing, housekeeping and personal care ever since. His father was apparently appointed as guardian of his person in a Florida proceeding in 1995. A professional fiduciary was appointed as conservator of Mr. Oakley’s estate at the same time, and continues to manage the proceeds from settlement of a personal injury lawsuit filed in connection with the original accident.

As Mr. Oakley reached his early 20s he became involved with Melissa Warren, another resident of Lamplight Village. She, too, had a guardian and conservator — the Howell County, Missouri, Public Administrator was appointed to handle her finances, medical and placement decisions after the probate court determined that she was unable to do so herself.

In 2006 Mr. Oakley and Ms. Warren decided they wanted to get married. They each asked their respective guardians for permission, and both refused. They then had a friend drive them to a neighboring state, where they were married. Upon their return they began to live together in a shared apartment at Lamplight Village, and they identified themselves as a married couple.

The two guardians responded quite differently. The guardian for Ms. Warren (now Mrs. Oakley) did not initially approve, but sat down with the couple and discussed what they had done. The guardian decided that they really did want to get married, that they understood the emotional and financial meaning of their decision, and that the marriage should be allowed to stand. In fact, she told the judge, if the marriage was annulled she would intend to immediately file a petition to secure court approval for a new marriage.

Mr. Oakley’s guardian reacted to the news of the wedding by filing a petition to have the marriage annulled. He argued that his original Florida guardianship was based on a finding that his son was incapacitated, and that the marriage therefore was invalid in the first place. In testimony, he explained himself by asking, rhetorically: “what happens if he decides ten years from now that if somebody else — another girl comes into his life and it’s better and bigger and everything than what he had?” He also filed a Missouri guardianship proceeding, which was granted while the annulment proceeding was pending.

The judge hearing the annulment petition denied Mr. Oakley’s father the relief he sought. The fact of a Florida guardianship, reasoned the judge, did not prevent the ward from having the capacity to understand the meaning and effect of marriage. Neither did the fact that his intellectual functioning was well below “normal” intelligence, with an IQ estimated at about 70.

The Missouri Court of Appeals agreed, and allowed the marriage to stand. The burden of proving that Mr. Oakley lacked capacity to marry was on his guardian, ruled the appellate judges, and he had failed to carry that burden. The existence of a Florida guardianship was not adequately shown, and neither was the effect of that order. The evidence considered by the trial judge was sufficient to support his finding that Mr. Oakley, despite any guardianship order, understood the nature and effect of marriage well enough to enter into this most personal of contractual arrangements.

There are a number of other interesting side-issues involved in Mr. Oakley’s marriage annulment proceeding. At least, they are interesting to lawyers — everyone else might find them less bracing. One such issue: the lawyers, the trial judge and the appellate judges all agreed that Mr. Oakley’s capacity to marry should be assessed under the law of Arkansas, where the marriage took place, rather than the law of Missouri, where the couple lived and the legal action was filed. Meanwhile, Mr. Oakley’s father insisted that the law of Florida should govern the question of whether a ward automatically loses all capacity to marry upon the appointment of a guardian; that argument was lost, however, when the Missouri courts decided that he had not proven the existence of a Florida guardianship as required by Missouri law. In Re Marriage of Oakley, April 27, 2011.

Interstate Guardianship Law Adopted in Arizona

JULY 12, 2010 VOLUME 17, NUMBER 22
Among the less-controversial steps taken by the Arizona Legislature in 2010 was the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which is usually referred to by its unpronounceable acronym UAGPPJA. The new law, which becomes effective on July 29, should make it easier for families to handle interstate guardianship and conservatorship issues. At the same time it should make it harder for warring families to move an ailing or demented family member across state lines for personal advantage.

Problems with interstate application of guardianship and conservatorship laws have been all too common. Imagine a typical scenario: father and stepmother, married for 25 years, live in Pennsylvania. Three children from father’s first marriage live in Florida, Arizona and Illinois. After stepmother checks father into a Pennsylvania adult care home, the children meet in Pennsylvania and decide they are better equipped to make decisions about their father’s care. Without telling their stepmother of their intentions they check father out of his adult care home, put him on an airplane, fly to Tucson and check him in to a nursing home here. Then they file a guardianship and conservatorship action in Arizona, giving notice to his wife in Pennsylvania.

Under existing law such a proceeding would be permissible, and could result in the Arizona courts making decisions about not only the Pennsylvania man’s living arrangements and medical care, but also over his (and his wife’s) Pennsylvania property. The cost and trouble of traveling to Arizona, hiring a local attorney and objecting to the Arizona court proceedings might well deter his wife from protecting herself or asserting her views on the proper care for her husband.

After the UAGPPJA goes into effect, however, such interstate moves to secure legal advantage should become ineffective. The Arizona courts will be instructed to defer to the courts of the home state of any proposed ward.

There are other frequent — and much more benign — interstate problems in guardianship and conservatorship proceedings that are addressed by the UAGPPJA, too. One arises when the subject of an Arizona guardianship legitimately moves out of state. Imagine, for example, that a working couple have become guardian for their 22-year-old son who is developmentally disabled. Now they want to move to another state, and they will take their son with them. Will their Arizona guardianship be valid in the new state? Will they have to initiate an entirely new proceeding in the new state? If they do not, will they have to report to the Arizona courts for the rest of their son’s life — even though Arizona no longer has any direct involvement in his life?

If the new state has also adopted the UAGPPJA (and so far 19 other states and the District of Columbia have) the process of transferring a guardianship or conservatorship is vastly simplified. A filing needs to be made with the Arizona court, then with the courts of the new state. Once both courts have agreed that the guardianship can be transferred, the Arizona proceeding is terminated and the new state takes over. The process is much simpler than a second proceeding in the new state, and it ensures approval from the Arizona courts before any action is taken. The same process can work in reverse for people moving into Arizona.

One other interstate problem arises when, for example, an Arizona conservatorship involves property in another state. Under the existing patchwork of laws, each state is different — and many of them require an entirely new conservatorship (a “protective proceeding” in the language of the interstate jurisdiction law) with court-appointed attorneys, bond premiums and separate accountings filed in the state with the property. The new law makes the process much simpler: once the Arizona conservator has filed appropriate documents with the courts of the other state, he or she can proceed as if appointed in that state. No separate court proceedings required, no additional legal fees incurred, and no potential conflicts between two courts overseeing the same conservatorship.

The UAGPPJA is available online through the National Conference of Commissioners on Uniform State Laws. Arizona’s version, the new Arizona Revised Statutes sections 14-12101 and following sections, differ very little from the proposed uniform law. The list of states adopting the UAGPPJA (which list is steadily growing) is also online at the NCCUSL website.

High-Stakes Guardianship Case Illustrates Multistate Conflicts

APRIL 9, 2007  VOLUME 14, NUMBER 41

Mark Glasser and Suzanne Glasser Matthews, brother and sister, have spent the last two years battling for physical and financial control over their mother, Lillian Glasser. The 86-year-old Mrs. Glasser, who at one point had an estimated net worth of $25 million, has been the subject of proceedings first in Texas and more recently in New Jersey, where a trial judge heard thirty-four days of testimony and argument last fall.

Nearly six months after the extended proceedings, New Jersey Judge Alexander Waugh has issued his ruling, appointing a guardian of the person and estate for Mrs. Glasser. Rather than appointing any of the family members who might have been candidates, Judge Waugh appointed New Jersey attorney Joseph Catanese as guardian of the person. Mr. Catanese had served as court-appointed counsel for Mrs. Glasser during the trial, and the judge indicated that her condition could worsen if yet another new party was injected into her life.

Judge Waugh also appointed a guardian of the estate (the equivalent of a conservator in Arizona and some other states), turning to the financial management firm Mrs. Glasser and her late husband had used before his death. Mrs. Matthews, her daughter, was ordered to return control of approximately $20 million she had transferred to a family limited partnership just before initiating guardianship proceedings in Texas (see the San Antonio Express-News report), and the judge made clear that at least some portion of the costs incurred by Mrs. Matthews to set up that entity would have to be reimbursed as well.

All of that is very interesting, and Judge Waugh’s written opinion reads like a fictional saga (for more detail and an excellent running commentary on the case, consider Texas Tech College of Law Prof. Gerry W. Beyer’s blog coverage of the case). What the Lillian Glasser case points out even more clearly, however, is a growing problem in guardianship matters—the conflicts that can arise between jurisdictions with the increased mobility of families, support systems, caregivers and assets.

Guardianship proceedings were initiated in Texas when Mrs. Matthews sought appointment as guardian of both her mother’s person and her estate. After Mrs. Matthews’ appointment as temporary guardian, another relative initiated the New Jersey case, arguing that Mrs. Glasser was a New Jersey resident and the question of her capacity—and management of her affairs—should be handled there.

In an earlier ruling Judge Waugh determined that his court should have primary jurisdiction over the guardianship. Luckily, the Texas judge assented, staying the proceedings until a hearing could be completed in New Jersey. Although neither state’s laws include explicit provisions permitting such an action, the two judges’ cooperation saved considerable expense and duplicative legal proceedings.

Arizona law also lacks a provision for resolution of interstate guardianship conflicts. In practice, such conflicts are handled on an ad hoc basis, considering the strength of the proposed ward’s ties to each of the jurisdictions, the location of principal witnesses, and other factors. Frequently the result is that the state where proceedings are first filed has priority, even though the stronger contacts are elsewhere.

The National Conference of Commissioners on Uniform State Laws (NCCUSL), which proposes uniform statutes for consideration by the states, has addressed this growing problem. A provision of the Uniform Guardianship and Protective Proceedings Act, proposed in 1997, would specifically permit the judge in one state to notify and consult with the judge in another state, and to decide whether to accept or decline jurisdiction based on the best interests of the proposed ward (see section 107(b) of the UGPPA).

Another growing problem involves movement of wards after appointment of a guardian or conservator. Under current law and practice, it may be necessary to initiate a whole new guardianship proceeding in the new state after a move, at considerable expense and duplicating much legal effort The proposed uniform law would also address that problem, permitting the final guardianship order of one state to simply be lodged with, and become an order of, the ward’s new state.

“Full Faith and Credit” Applies In Two-State Probate Actione

APRIL 5, 2004 VOLUME 11, NUMBER 40

A Florida court found Alvarado Kelly incompetent in 1960, and appointed a guardian to manage his property. Fifteen years later Mr. Kelly moved to a facility in Mississippi operated by Sarah Cuevas; he lived in that facility until his death twenty five years later. After his death Mr. Kelly’s brother William and Ms. Cuevas became embroiled in a legal dispute involving the courts of both states.

Mr. Kelly had signed a will while he lived in Mississippi, and he had named Ms. Cuevas as executrix (what we in Arizona would call “personal representative”). Shortly after his death Ms. Cuevas filed the will for probate with the Mississippi courts, gave notice to William Kelly as the next of kin, and secured a court order appointing her as executrix and finding the will to be Mr. Kelly’s valid will.

William Kelly then filed a proceeding in the Florida courts. He acknowledged that there had been a finding in Mississippi, but he argued that it was invalid both because he had not actually participated and because his brother had never been a resident of Mississippi.

William Kelly argued that since his brother had been adjudged incompetent and the Florida courts had never given specific permission for him to relocate to Mississippi, he remained a resident of Florida for the rest of his life. He also insisted that the will was invalid because Ms. Cuevas had exercised undue influence.

Ms. Cuevas filed a motion to dismiss the Florida probate, but the Florida court agreed with William Kelly that her appointment by the Mississippi court was invalid. A Florida bank was appointed as personal representative of Mr. Kelly’s estate and authorized to collect his assets.

The Florida Court of Appeals reversed the probate court’s decision, however. In doing so, it relied partly on the U.S. Constitution, which requires the courts of each state to give “full faith and credit” to the courts of sister states in most situations.

In this case, ruled the appellate court, Ms. Cuevas had given William Kelly notice of the pending Mississippi proceedings, and an opportunity to file pleadings and present his argument that any proceedings should be in Florida. When the Mississippi court admitted Mr. Kelly’s will to probate it made a determination that he was domiciled in Mississippi; if William Kelly disagreed with that conclusion he needed to make his argument in Mississippi, rather than just filing his own proceeding in Florida. Cuevas v. Kelly, March 26, 2004.

Mr. Kelly’s probate proceedings provide an interesting illustration of the “full faith and credit” clause of the Constitution, and of its application to probate proceedings. It also demonstrates that it is unwise to ignore the proceedings in another state, hoping to later file a competing action in a more friendly jurisdiction.

December, 2005, update: In a related case in the Mississippi courts, that state’s Court of Appeals ruled that probate proceedings were proper in Mississippi. William Kelly, the decedent’s brother, had argued in the Mississippi proceedings that there was no jurisdiction for a probate there, since (he insisted) all of Alvarado Kelly’s assets necessarily belonged in Florida where he had resided when he had last been competent to select a residence. The Mississippi chancery court (where probate proceedings are tried) had ruled that it would be “impossible” to imagine that Alvarado Kelly had lived in Mississippi for thirty years without accumulating clothing or other personal items. His death in Mississippi, coupled with the existence of any assets at all, gave Mississippi courts jurisdiction over his estate, and the Court of Appeals agrees that those probate proceedings were properly initiated. In the Matter of Estate of Kelly, December 6, 2005.

Medicaid Eligibility Lost After Recipient Moves From District

JULY 15, 2002 VOLUME 10, NUMBER 2

Although many of the legal problems facing the elderly and the disabled are addressed through state laws, the underlying problems are regional, national or even universal. Though the national medical program for the elderly and disabled, Medicaid, is partially funded and broad guidelines set by the federal government, program administration is handled exclusively by states. Another area of interstate problems is guardianship law, which is almost entirely state-specific. A recent case arising, ironically enough, in the District of Columbia involves the interplay of all of those issues.

Gerald McKenzie is a 38-year-old developmentally disabled man. He was born in the District of Columbia and lived his entire life there until two years ago. During most of those years he received much of his care through the federal Medicaid program, but from providers located in D.C. and based on his eligibility in the District.

Mr. McKenzie’s aunt Sheridan Bacchus was appointed as guardian of his person in 1995, and he lived with her for the next five years. When she moved to suburban Maryland in 2000, he moved along with her. Although both of them now live at a Maryland address, Ms. Bacchus intended to keep Mr. McKenzie enrolled in the same day-care program he attended while living in the District. The District notified her, however, that Mr. McKenzie’s services were terminated immediately upon learning of his relocation.

Ms. Bacchus appealed the termination of services. She argued that Mr. McKenzie is completely unable to make a conscious decision to change his residence, and that she as guardian has the right to make that determination. Although he physically lives in Maryland, she insists, it is her intention that he remain a resident of the District.

The D.C. Court of Appeals ruled against Ms. Bacchus. The Medicaid law, said the court, requires the states and the District to provide services only to those who actually reside within their respective boundaries. Because Mr. McKenzie lives in Maryland, even though only about one mile from the District’s boundary, he will have to apply for Medicaid benefits with Maryland. McKenzie v. DC DHS, July 11, 2002.

Mr. McKenzie will probably be eligible under Maryland’s Medicaid program. He will, however, have to go through the application process again (eligibility for Medicaid in one state does not transfer to a new state when the recipient moves).

Fortunately, D.C. law expressly permits the guardianship to continue even though Mr. McKenzie now lives in Maryland. Some states require establishment of a guardianship in the new state and termination of the old proceeding. Even so, Ms. Bacchus may find it increasingly difficult to secure treatment and make decisions with an “out of state” guardianship.

Georgia/Arizona Guardianship Dispute: An Update


Several weeks ago, Elder Law Issues told the story of Sidney Head, a Georgia resident moved to Arizona by his son, using a health care power of attorney, despite his wife having been appointed his guardian in Georgia (see Elder Law Issues Vol. 4, No. 32). In that report, we explained that the Arizona courts had declined to get involved in the dispute, referring the matter to Georgia courts even though Col. Head continues to reside in a Tucson-area nursing home.

In that Georgia court proceeding, Col. Head’s wife (and guardian) objected to the relocation of Col. Head by his son (and health care agent). His son argued that his actions were not prohibited by Georgia law, and that he had acted in his father’s best interests. Col. Head’s son pointed to the allegedly inadequate care he received in a Georgia nursing home, and to his wife’s failure to respond to complaints from Col. Head’s children.

The Georgia court has now agreed with the son, and ordered that Col. Head may remain in the Tucson nursing home. In making its decision, the court relied on evidence that a Georgia ombudsman found that Col. Head received improper hygiene care, was not released from physical restraints for even short periods, and was not adequately hydrated. Based on the shortcomings of Col. Head’s Georgia placement, and the particular language of Georgia law regarding health care powers of attorney, the court found that Col. Head’s son/agent acted appropriately and ordered his wife/guardian to acquiesce in and pay for the placement (from Col. Head’s funds).

Col. Head’s situation was potentially complicated by the fact that his son had also arranged for a controversial and expensive treatment regimen. Col. Head receives large doses of testosterone, pituitary growth hormone and placental gonadotropin by regular injections. Experts procured by the guardian expressed concern that the treatment was unproved, potentially dangerous and very expensive. The Georgia court, however, was persuaded by the affidavits of the physicians involved in Col. Head’s treatment to the effect that his condition has improved since removal from Georgia. His guardian was ordered to pay for the continuing injections. In Re: Guardianship of Head, Jackson County, Georgia Superior Court, February 21, 1997.

Col. Head’s case turns at least partially on the specific language of Georgia’s statute, which expressly provides that appointment of a guardian does not override a prior valid health care power of attorney. In Arizona (and many other states) the law is less than clear about the relationship between guardians and health care agents; the results might differ in each state.

Col. Head’s legal problems also point out the growing likelihood of interstate guardianship disputes. His care has been the subject of two separate court proceedings, and it would not be difficult to imagine the involvement of more states. Recent news stories about a California man transported to Michigan (allegedly to meet with Dr. Jack Kevorkian) point out the growing potential for interstate guardianship disputes. Few states have adopted express rules for dealing with these kinds of problems, and legal experts disagree about the validity of out-of-state guardianship orders and the interplay of guardianship and powers of attorney.

©2016 Fleming & Curti, PLC
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