It’s Time For Uniform Guardianship Laws
One idea that we do not often consider is the effect on us of having fifty States and numerous counties within them, all with their own laws, regulations, and specific procedures as to how things should be done.
The need for uniform laws becomes apparent as we travel from State to State. Decisions made in one jurisdiction might or might not be enforced in another. Child custody became an obvious subject for uniform laws. What good would an Order entered in one State granting custody to a parent be if the other could simply take the child to another State and have a conflicting Order entered? A law covering this, the Uniform Child Custody Jurisdiction and Enforcement Act has been passed in almost every State. In the same way, uniform Guardianship laws are being considered to make the system consistent throughout the United States. I had the opportunity recently to hear how this would work. If you have additional concerns about guardianship, make sure to speak to a qualified guardianship attorney.
On April 23, Katherine Pearson, Esq., the Chair Elect of the Elder Law Section of the Pennsylvania Bar Association and Professor of Law at Penn State Dickinson School of Law, introduced the notion to the Section that we could proactively promote legislation that appears to be a “win-win” for everyone. The conference where this was presented which brings together attorneys with similar interests throughout the State is known as “Section Day” and was held at the Radisson Penn Harris Hotel & Convention Center in Camp Hill, PA. The subject was introduced through a panel of experts including Raymond Pepe, Commissioner to the Uniform Laws Commission, Sally Hume from AARP, and Erica Wood from the ABA, and was titled “Introduction to the Uniform Law on Adult Guardianship and Protective Persons Jurisdiction Act: Should Pennsylvania Be an Early Leader?”
Here is some background and what is at stake.
Guardianship, which in some States, is referred to as Conservatorship, involves the appointment of someone or some entity to make decisions for an incapacitated person. If personal decisions are involved such as where the person might live or what kind of medical treatment he would receive, the appointee is “guardian of the person.” Financial and money decisions are handled as “guardian of the estate.” The same person or entity could serve as both. The appointment is made by Court Order after a Petition is filed alleging incapacity and a hearing is held.
Frail incapacitated seniors can be especially at risk where there is conflict among various relatives, heirs, and associates involved in their finances. Seniors may own properties in more than one State. They may travel from one residence to another or live with family members and friends in different jurisdictions.
Here are some questions.
- Recognition. How can the authority of a Guardian who is appointed in one State be recognized or enforced in another State? For example, where a person is appointed Guardian in Pennsylvania and the person he is serving moves to Delaware, will Delaware recognize his authority to act?
- Transfer. How can a Guardianship be moved from one state to another as, for instance when a Guardian and the incapacitated person both move permanently to another State.
- Initial Jurisdiction. Where there are two or more possible jurisdictions, where should an action be filed?
The situations are more than theoretical. Here are some actual cases.
In Matter of Steven Prye (2005), an Illinois public guardian sought mental health treatment in Missouri for the incapacitated person he represented. Missouri would not recognize his authority as an out-of-state guardian. The person he represented was not allowed to agree to his own treatment because he had been found incapacitated. Treatment was delayed for years.
In Guardianship of Loyce Juanita Parker (2008), Parker, a lifelong resident of Oklahoma, went to Texas to be near her daughter and wait for an assisted living opening in Oklahoma. While her daughter filed for guardianship in Texas, her son filed in Oklahoma. After much time and expensive litigation, the Oklahoma Court took jurisdiction.
Under the suggested uniform Guardianship law, referenced as UAGPPJA, Oklahoma would have been found to have been the “home state” for proper jurisdiction initially.
Interstate differences can become so bewildering that in one case, a Guardian mother in Alabama wanted to move with her incapacitated adult son to Florida but was stalled. The Alabama Court agreed to close and transfer the Guardianship if Florida appointed her in that State. Florida refused to make the appointment since the Guardianship was still open in Alabama.
Hopefully, the UAGPPJA, if adopted, will eliminate the unnecessary litigation and reduce pointless and costly litigation.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.