Uncharted Waters — Transfers of Adult Guardianships

The United States has a system in place to provide for the care of adults who are no longer capable of making their own decisions due to mental retardation (as it is still called by statute), developmental disability, or other incapacities.  For illustration purposes, let’s say Mr. Smith has a stroke on Tuesday, leaving him completely disoriented to place and time and unable to make reasoned decisions.  Mr. Smith is still going to have bills to pay and medical decisions to make on Wednesday.  If Mr. Smith does not have a durable power of attorney and a health care proxy (documents which would have allowed others to make certain financial and medical decisions on his behalf), someone could petition the Court to appoint a guardian for Mr. Smith.  A guardian would then be able make decisions on Mr. Smith’s behalf.  Currently in the United States, there are an estimated 400,000 individuals–at least–with a court-appointed guardian.  The problem, however, is that each of these individuals has been appointed a guardian through one of fifty-five different guardianship systems throughout the United States.  Therefore, issues tend to arise when the individual or Guardian moves to a different jurisdiction than that which made the original determination of incapacity; such a move is a frequent occurrence in today’s increasingly mobile society.

One would think that a Guardian would be able to continue to carry out their duties in another state and be able to seek court enforcement in the new state if an individual or entity refuses to give deference to the other state’s determination of incapacity and appointment of guardian.  However, this has not been case.  Courts are not required to give full faith and credit to guardianships granted in other states as is typically required of other states’ judicial proceedings by the Constitution.  Courts have historically reasoned that a determination of incapacity is so specific to the statute in that particular jurisdiction such that the determination cannot apply universally.

What does this mean for individuals who lack the capacity to make decisions on their own?  Are they stuck in one place?  What about the Guardians?  Are they also stuck in one place so that they can continue to make decisions for their loved one?  The New York State legislature sought to rectify this issue by adding a new provision to the Mental Hygiene Law, which governs guardianships in New York.  In order to avoid costly and duplicative proceedings, from having to re-petition the court in a new jurisdiction, the legislature adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), effective April 21, 2014.

The UAGPPJA outlines procedures whereby a Guardian can register a foreign state’s determination of incapacity and appointment of guardian in New York or petition a New York court to accept a foreign state’s guardianship proceeding.  The UAGPPJA also outlines procedures for transferring New York guardianships to other states.

Because this statute is so new, many courts have not yet been asked to accept a foreign state’s order or transfer a guardianship to another state.  In addition, there are still six states in the nation (Florida, Texas, Louisiana, Kansas, Wisconsin, and Michigan) that have yet to adopt the UAGPPJA, which can make transferring guardianships from or to these states particularly difficult.

If you have guardianship over a loved one and will be moving to New York or out of New York, contact an attorney in our Elder Law department for help navigating these uncharted waters.