Dueling Guardianships

01/22/2009 01:33:00 By David English

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Chaos reigns when guardians are appointed for the same person in more than one state

One of the many impacts of our country’s growing elderly population is an explosion in the number of disputes concerning court appointment of guardians for the same individual in more than one state. Elderly individuals are more mobile than previous generations, and children and other concerned family members are often located in multiple states. The need for a guardianship often arises in response to a crisis. In haste, family members and other concerned individuals from different states may simultaneously seek the appointment of guardians by various courts.

The law on appointment of guardians is controlled by the individual states. There has until recently been a lack of guidance on what should be done when guardian appointments are made in more than one state. These gaps in the legal framework for guardianship jurisdiction have proven problematic for guardians, wards, and the courts, often resulting in protracted, costly litigation.

A recent court case in Florida illustrates the very problems encountered when two individuals obtain set guardianship appointments in different states. In Bogert v. Morrison, the ward, Mr. Morrison, suffered an incapacitating head injury in February 2006 while visiting in Reno, Nevada. Ms. Bogert, Morrison’s fiancée, brought him back to his home in New Jersey and began to care for him.

Dueling guardianshipsIn April 2006, and without the knowledge of the fiancée, Morrison’s daughter moved Morrison to Florida. In response to the actions of the daughter, the fiancée filed for a guardianship with the New Jersey courts, seeking the ward’s return to New Jersey and the court entered a preliminary order concerning the case. Before that proceeding was concluded, the daughter, in early June, filed for a guardianship with the Florida courts. Not long after, the New Jersey court issued a second order that upheld its jurisdiction over any guardianship matters because the ward was domiciled in New Jersey.

However, in late August the Florida court, acting on the fiancée’s petition to dismiss the Florida ’s guardianship based on the prior New Jersey decision, denied the petition and issued a final order appointing the daughter guardian in Florida. Consequently,

Mr. Morrison now had two different guardianships in two different states, each empowered to act in the ward’s best interests.

Priority
On appeal, the Florida Appellate Court examined the question of priority between the two states, the two guardianship orders, and the two guardians. Lacking any legislation to guide its decision, the court based its decision on a principle of priority. Under this principle, New Jersey was the state with jurisdiction over the guardianship matter simply because it was the first jurisdiction to enter an order.

A concurring opinion recommends that the legislature come up with a solution, since the “principle of priority can sometimes unreasonably reward the person who wins the race to a courthouse with jurisdiction.” Had the daughter in Florida been the first to obtain a court order, the result of the case would have been the opposite and the jurisdiction of the Florida court would have been upheld.

Bogert provides a rule for Florida although one can question whether a race to the courthouse is the best solution. As the Bogert case illustrates, the absence of statutory guidelines on jurisdiction was responsible for protracted and very expensive litigation. Bogert involved sorting out which court had jurisdiction, but there are other issues, including procedures for transferring an existing guardianship to another state, and the ability of a guardian to engage in transactions outside a state’s boundaries, for which there is a similar lack of statutory guidance.

Fortunately, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act answers these and other questions. The Act was drafted by the Uniform Law Commission (ULC) in 2007. The ULC was founded in 1892 to provide non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

Acting appropriately
The new Uniform Act addresses the issue of jurisdiction over adult guardianships, conservatorships, and other protective proceedings. Under the Act, a “guardian” is appointed by the

court to make decisions regarding the person of an incapacitated adult, and a “conservator” is appointed to manage the adult’s property.

The objective of the new Uniform Act is simple: to ensure that only one state has jurisdiction at any one time. To that end, the Act contains specific guidelines to specify which court has jurisdiction to appoint a guardian or conservator for an incapacitated adult. The Act does this by prioritizing the states that might claim jurisdiction. The state with primary jurisdiction is the “home state,” defined as the state in which the adult has lived for at least six consecutive months immediately before the date a court petition to appoint a guardian or conservator is filed.

The second is the “significant-connection state,” which is broadly defined to include the location of the individual’s family, a state where the individual might have lived for many years, or the state where the individual’s property is located.

If the home state and all significant-connection states decline jurisdiction, or if the individual has no home state or significant-connection state, then another state may claim jurisdiction. The Act provides that once a court has jurisdiction, this jurisdiction continues until the proceeding is terminated or transferred.

Applying the Act to the facts of the Bogert case, the New Jersey court would have had clear jurisdiction over the guardianship and the multiple court cases would have been prevented. The Florida court would have refused to take jurisdiction over the matter because the ward’s home state was New Jersey.

Although the Florida court did correctly find jurisdiction based in New Jersey using the principle of priority, the Uniform Act offers clear rules that do not simply reward a guardianship order to the first person to reach the courthouse steps. The Act instead provides predictable outcomes for guardianship controversies concerning jurisdiction.

The Act provides comprehensive procedures for transferring guardianship or conservatorship proceedings from one

state to another, helping to reduce expenses and save time while protecting persons and their property from potential abuse. The Act also includes provisions for the enforcement of guardianship and protective orders in other states.

Because of its positive impact for the elderly and persons with disabilities, the Uniform Act has received widespread support from many organizations. The Act has been endorsed by the National Guardianship Association, the National College of Probate Judges, and the National Academy of Elder Law Attorneys. Additional supporters include the American Bar Association Commission on Law and Aging and AARP.

By September 2008, four states—Alaska, Colorado, Delaware and Utah—had enacted the Act. As many as twenty states are expected to introduce the act into their legislatures in 2009. Widespread passage of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act in the near future will significantly improve the law for adult guardianships. The Act will cut down on expensive and wasteful litigation and protect a ward’s estate from any losses that might be incurred during litigation.

Further information on the Uniform Adult Guardianship and Protective Proceedings Act can be found at the ULC’s website at www.nccusl.org.

David English is the W. F. Fratcher Missouri Endowed Professor of Law at the University of Missouri, where he has taught since 1998. Prof. English is an expert in the fields of estate planning and elder law. He served as Reporter for the Uniform Law Commission’s drafting committee on the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. He is currently a Missouri Uniform Law Commissioner and the Executive Director of the Joint Editorial Board for Uniform Trusts and Estates Acts.

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