UNIFORM ADULTUNIFORM ADULTGUARDIANSHIP ANDGUARDIANSHIP AND

PROTECTIVE PROCEEDINGSPROTECTIVE PROCEEDINGSJURISDICTION ACTJURISDICTION ACT

The Problem of MultipleThe Problem of MultipleJurisdictionJurisdiction

Guardianship is controlled by stateGuardianship is controlled by statelaw. Because there are 50 individuallaw. Because there are 50 individualstates, there are 50 different statestates, there are 50 different stateguardianship laws, plus the District ofguardianship laws, plus the District ofColumbia and American IndianColumbia and American Indianreservations.reservations.By contrast, the next closestBy contrast, the next closestcompetitor, Canada, has 12competitor, Canada, has 12guardianship laws, Australia has six,guardianship laws, Australia has six,the UK has three, and most otherthe UK has three, and most othercountries have only one guardianshipcountries have only one guardianshiplaw.law.

Uniform LawUniform ConferenceLaw Conference

To minimize the difference in state laws, theTo minimize the difference in state laws, theUniform Law Conference of the US was formedUniform Law Conference of the US was formedover 100 years ago.over 100 years ago.

Its objective is to promulgate model laws forIts objective is to promulgate model laws forstates to enact.states to enact.

The Uniform Guardianship and ProtectiveThe Uniform Guardianship and ProtectiveProceedings Act [UGPPA], which dates back toProceedings Act [UGPPA], which dates back to1969 and was last comprehensively revised in1969 and was last comprehensively revised in1997, has been enacted in about 20 states.1997, has been enacted in about 20 states.

The ProblemThe of TerminologyProblem of Terminology

States differ on terminology for the person appointed byStates differ on terminology for the person appointed bythe court to handle the affairs of a minor or incapacitatedthe court to handle the affairs of a minor or incapacitatedadult.adult.In a majority of American states and under the UGPPA,In a majority of American states and under the UGPPA,aa ““guardianguardian”” is appointed to make personal careis appointed to make personal caredecisions for the ward. Adecisions for the ward. A ““conservatorconservator”” is appointed in ais appointed in aso-calledso-called ““protective proceedingprotective proceeding”” to manage the personto manage the person’’ssproperty.property.But in many states, only aBut in many states, only a ““guardianguardian”” is appointed, eitheris appointed, eithera guardian of the person or guardian of the estate, and ina guardian of the person or guardian of the estate, and ina few states, a conservator is appointed for an adult anda few states, a conservator is appointed for an adult anda guardian is appointed for minors.a guardian is appointed for minors.This presentation will use the uniform law terminology.This presentation will use the uniform law terminology.

The IssueThe of JurisdictionIssue of Jurisdiction

Because the US has 50 plus guardianshipBecause the US has 50 plus guardianshipsystems, problems of jurisdiction are frequent.systems, problems of jurisdiction are frequent.

Questions of which state has jurisdiction toQuestions of which state has jurisdiction toappoint a guardian or conservator can ariseappoint a guardian or conservator can arisebetween an American state and another country.between an American state and another country.

But more frequently, problems arise because theBut more frequently, problems arise because theindividual has contacts with more than oneindividual has contacts with more than oneAmerican state.American state.

Current LawCurrent Law

In nearly all American states, a guardian may beIn nearly all American states, a guardian may beappointed by a court in a state in which theappointed by a court in a state in which theindividual is domiciled or is physically present.individual is domiciled or is physically present.

In nearly all American states, a conservator mayIn nearly all American states, a conservator maybe appointed by a court in a state in which thebe appointed by a court in a state in which theindividual is domiciled or has property.individual is domiciled or has property.

But this system of dual jurisdiction leads toBut this system of dual jurisdiction leads toproblems.problems.

The Problem of MultipleThe Problem of MultipleJurisdictionJurisdiction

Cases where jurisdiction is claimed by moreCases where jurisdiction is claimed by morethan one court are increasing. Domicile may bethan one court are increasing. Domicile may bein dispute or an appointment is made in a statein dispute or an appointment is made in a statewhere the individual is present but not domiciledwhere the individual is present but not domiciledNo state has an effective mechanism forNo state has an effective mechanism forresolving disputes if courts in more than oneresolving disputes if courts in more than onestate claim jurisdiction.state claim jurisdiction.Basing jurisdiction on physical presence invitesBasing jurisdiction on physical presence invites““parent snatchingparent snatching”” in order to establishin order to establishjurisdiction in another state.jurisdiction in another state.

The ProblemThe of TransferProblem of Transfer

To protect rights, a proceeding to appoint aTo protect rights, a proceeding to appoint aguardian or conservator is necessarily expensiveguardian or conservator is necessarily expensiveand time consuming.and time consuming.Should an individual under guardianship orShould an individual under guardianship orconservatorship move permanently to anotherconservatorship move permanently to anotherstate, it may become necessary to appoint astate, it may become necessary to appoint aguardian or conservator in another state.guardian or conservator in another state.Few states have streamlined procedures forFew states have streamlined procedures formaking such a second appointment.making such a second appointment.In most states, all of the procedures for anIn most states, all of the procedures for anoriginal appointment must be repeated.original appointment must be repeated.

The Problem of Court CooperationThe Problem of Court Cooperation

Should guardianshipShould or conservatorshipguardianship or conservatorshipproceedings be instituted in more than oneproceedings be instituted in more than onestate, cooperation between the courtsstate, cooperation between the courtsinvolved is essential.involved is essential.Unfortunately, such cooperation isUnfortunately, such cooperation isinfrequent.infrequent.Guidance is needed on which court is toGuidance is needed on which court is todecide the question of jurisdiction and thedecide the question of jurisdiction and thestandard that court is to apply.standard that court is to apply.

The Full Faith and Credit ProblemThe Full Faith and Credit Problem

The US Constitution generally requires that courtThe US Constitution generally requires that courtorders in one state be honored in another state.orders in one state be honored in another state.But there are exceptions to the full faith andBut there are exceptions to the full faith andcredit doctrine, of which guardianship andcredit doctrine, of which guardianship andconservatorship law is one.conservatorship law is one.Sometimes, guardianship and conservatorshipSometimes, guardianship and conservatorshipproceedings must be initiated in a second stateproceedings must be initiated in a second statebecause of the difficulty of implementing a courtbecause of the difficulty of implementing a courtorder entered in another state.order entered in another state.Examples of out-of-state enforcement issuesExamples of out-of-state enforcement issuesinclude sale of real estate or a residentialinclude sale of real estate or a residentialplacement in another state.placement in another state.

The NewThe Uniform LawNew Uniform Law

To address these problems, the UniformTo address these problems, the UniformLaw Conference in 2005 appointed aLaw Conference in 2005 appointed acommittee to draft a new uniform law.committee to draft a new uniform law.

The work of the committee is expected toThe work of the committee is expected tobe completed in late 2007.be completed in late 2007.

The act will be known as the Uniform AdultThe act will be known as the Uniform AdultGuardianship and Protective ProceedingsGuardianship and Protective ProceedingsJurisdiction Act (UAGPPJA).Jurisdiction Act (UAGPPJA).

The ChildThe Custody AnalogyChild Custody Analogy

Similar problems of jurisdiction existed for many years inSimilar problems of jurisdiction existed for many years inthe US in connection with child custody determinations.the US in connection with child custody determinations.If one parent lived in one state and the other parent livedIf one parent lived in one state and the other parent livedin another state, frequently the courts in more that onein another state, frequently the courts in more that onestate had jurisdiction to enter custody orders.state had jurisdiction to enter custody orders.To minimize these disputes, the Uniform LawTo minimize these disputes, the Uniform LawConference approved the Uniform Child CustodyConference approved the Uniform Child CustodyJurisdiction Act, which was subsequently enacted in allJurisdiction Act, which was subsequently enacted in all50 states.50 states.This act was substantially revised in 1997 in the form ofThis act was substantially revised in 1997 in the form ofthe Uniform Child Custody Jurisdiction and Enforcementthe Uniform Child Custody Jurisdiction and EnforcementAct, which has been enacted in 40+ states.Act, which has been enacted in 40+ states.The drafters of UAGPPJA have elected to model muchThe drafters of UAGPPJA have elected to model muchof their Act after the child custody law.of their Act after the child custody law.

Limitation toLimitation Adultsto Adults

The UAGPPJA applies only to adultThe UAGPPJA applies only to adultproceedings.proceedings.The act is limited to adults because nearly allThe act is limited to adults because nearly alljurisdictional issues involving guardianships forjurisdictional issues involving guardianships forminors are adequately addressed by the uniformminors are adequately addressed by the uniformlaw on child custody.law on child custody.But the uniform acts on child custody onlyBut the uniform acts on child custody onlyapplies to minors, not adults.applies to minors, not adults.

The UAGPPGA:The ObjectivesUAGPPGA: Objectives

The Uniform Adult Guardianship and ProtectiveThe Uniform Adult Guardianship and ProtectiveProceedings Jurisdiction Act has the followingProceedings Jurisdiction Act has the followinggeneral objectives:general objectives:To provide that except in cases of emergency,To provide that except in cases of emergency,jurisdiction to appoint a guardian or conservatorjurisdiction to appoint a guardian or conservatorwill usually be fixed in the courts of one and onlywill usually be fixed in the courts of one and onlyone state.one state.To provide a procedure for transferring a caseTo provide a procedure for transferring a casefrom one state to another.from one state to another.To provide that guardianship andTo provide that guardianship andconservatorship orders entered in one state canconservatorship orders entered in one state canbe enforced in another state.be enforced in another state.

Key ConceptsKey Concepts

To determine which court has primary jurisdiction,To determine which court has primary jurisdiction,key concepts are to determine the individualkey concepts are to determine the individual’’ss““home statehome state”” andand ““significant connection state.significant connection state.””AA ““home statehome state”” is the state in which the individualis the state in which the individualwas physically present for at least six consecutivewas physically present for at least six consecutivemonths immediately before the commencement ofmonths immediately before the commencement ofthe guardianship or protective proceeding.the guardianship or protective proceeding.““Significant connection state,Significant connection state,”” which is a potentiallywhich is a potentiallybroader concept, means a state other than the homebroader concept, means a state other than the homestate in which the individual has a significantstate in which the individual has a significantconnection other than mere physical presence, andconnection other than mere physical presence, andwhere substantial evidence concerning thewhere substantial evidence concerning theindividual is available.individual is available.

General RuleGeneral Rule

General rule is that the home state has primaryGeneral rule is that the home state has primaryjurisdiction to appoint a guardian or conservator.jurisdiction to appoint a guardian or conservator.This primary jurisdiction continues to apply for up toThis primary jurisdiction continues to apply for up tosix months following a move to another state.six months following a move to another state.Subsidiary rule is that a significant connection stateSubsidiary rule is that a significant connection statemay assume jurisdiction if (1) the individual does notmay assume jurisdiction if (1) the individual does nothave a home state or (2) the home state has declinedhave a home state or (2) the home state has declinedjurisdiction on the basis that the significantjurisdiction on the basis that the significantconnection state is a more appropriate forum.connection state is a more appropriate forum.A court in another state has jurisdiction if the homeA court in another state has jurisdiction if the homestate and all significant connection states havestate and all significant connection states havedeclined jurisdiction or the individual does not havedeclined jurisdiction or the individual does not havea home state or significant connection state.a home state or significant connection state.

The UncontestedThe CaseUncontested Case

To facilitate appointments in the average caseTo facilitate appointments in the average casewhere jurisdiction is not in dispute, a significantwhere jurisdiction is not in dispute, a significantconnection state also has jurisdiction if (1) noconnection state also has jurisdiction if (1) noproceeding has been commenced in theproceeding has been commenced in therespondentrespondent’’s home state or another significants home state or another significantconnection state, (2) no objection to the courtconnection state, (2) no objection to the court’’ssjurisdiction has been filed, and (3) the courtjurisdiction has been filed, and (3) the courtconcludes that it is a more appropriate forumconcludes that it is a more appropriate forumthan the court in another place.than the court in another place.

Special CasesSpecial Cases

Whether or not the state is a home state orWhether or not the state is a home state orsignificant connection state, a state in whichsignificant connection state, a state in whichthe individual is physically present hasthe individual is physically present hasjurisdiction to appoint an emergencyjurisdiction to appoint an emergencyguardian if an urgency exists.guardian if an urgency exists.

A court where property is located hasA court where property is located hasjurisdiction to appoint a conservator or enterjurisdiction to appoint a conservator or enteranother protective order with respect toanother protective order with respect toproperty located in the state.property located in the state.

Court CooperationCourt Cooperation

The UAGPPJA includes provisions re:The UAGPPJA includes provisions re:–– Communication between courts in differentCommunication between courts in different

states.states.

–– Taking testimony in another state.Taking testimony in another state.

–– Specifying which court has jurisdiction toSpecifying which court has jurisdiction todecide jurisdiction if proceedings have beendecide jurisdiction if proceedings have beencommenced in more than one state.commenced in more than one state.

Transfer toTransfer Another Stateto Another State

The UAGPPJA contains a procedure forThe UAGPPJA contains a procedure fortransferring a proceeding to another state.transferring a proceeding to another state.To make the transfer, two court orders areTo make the transfer, two court orders arenecessary, one by the court giving up the case,necessary, one by the court giving up the case,and a second by the court in the other state thatand a second by the court in the other state thatwill be receiving the case.will be receiving the case.The court receiving the case must give full faithThe court receiving the case must give full faithand credit to the order from the sending state,and credit to the order from the sending state,including the determination of the individualincluding the determination of the individual’’ssincapacity and the identity of the guardian orincapacity and the identity of the guardian orconservator appointed.conservator appointed.

Out ofOut State Enforcementof State Enforcement

To facilitate enforcement ofTo facilitate enforcement ofguardianship and conservatorshipguardianship and conservatorshiporders in other states, the UAGPPJAorders in other states, the UAGPPJAauthorizes registration of the order inauthorizes registration of the order inother states, and requires that theother states, and requires that thecourts of the other state give thecourts of the other state give theregistered order full faith and credit.registered order full faith and credit.

International ApplicationInternational Application

Under the UAGPPJA, an American stateUnder the UAGPPJA, an American statethat has enacted the Act mustthat has enacted the Act must recognizerecognizeand enforce a guardianship orand enforce a guardianship orconservatorship order of a foreign countryconservatorship order of a foreign countrymade under factual circumstances inmade under factual circumstances insubstantial conformity with the Act exceptsubstantial conformity with the Act exceptto the extent such order violatesto the extent such order violatesfundamental principles of human rights.fundamental principles of human rights.

More InformationMore Information

This presentation has been necessarilyThis presentation has been necessarilybrief.brief.

More detail concerning the UAGPPJA,More detail concerning the UAGPPJA,including provisions not discussed in thisincluding provisions not discussed in thispresentation, may be found atpresentation, may be found atwww.nccusl.orgwww.nccusl.org..