An Interstate Love Story
Arizona widower Greg Smith loved spending summers at his cabin in Vermont. At age 79, he had started to slow down mentally but he still looked forward to hiking in the mountains and swimming in the pond. Several years after his wife died, he met widow Kelly Jones in Vermont and the couple shortly became inseparable. At the end of the following summer, Greg fell while hiking. He was lucky not to have broken any bones, but he had some nasty bruises and seemed badly shaken. Kelly invited him to to stay with her at her Boston home until he felt well enough to return to Arizona. When Greg's daughter, Linda, talked with him on the phone, he seemed withdrawn and somewhat confused.
When Linda next checked Greg's bank statement online, she noticed that large sums of money had recently been withdrawn from the account, including a payment to a Boston lawyer for $2,500. Linda tried to talk with her father about the account, but he couldn't explain the withdrawals, and got irritated with her for asking. After a while, he stopped answering her calls. Linda flew to Boston from Arizona but Kelly seemed reluctant to allow Linda to come to her home to visit Greg. When Linda finally saw her father, she was shocked to find him emaciated and confused and noticed that his bruises were not healing. Kelly refused to allow Linda to take Greg to a doctor. When Linda called the bank the next day to ask about her father's account, the manager politely told her that she could not speak with her because a new power of attorney had been added to Greg's account, revoking Linda's authority. Linda called Greg's long-time attorney in Arizona, who recommended that she speak with a Massachusetts lawyer.
When people become incapable of making personal decisions or managing money, a court may a appoint a guardian or conservator to make decisions on their behalf. The guardian has authority over health care, medical treatment and living arrangements, and a conservator has authority over personal property, financial management, and estate planning. Guardianship and conservatorship cases are known as "protective proceedings." Protective proceedings are expensive and time-consuming, especially when they are contested, and they create the risk of tearing a family apart. We use them only as a last resort to prevent significant abuse, neglect and financial exploitation.
When Linda came to our office in 2009, she was frantic about her father's safety and well-being. We discussed the many thorny issues that come up in contested family caregiving situations, including the relationship between Linda and her father, the role of Linda's siblings, how to honor Greg's wishes and preserve his autonomy, and how to prevent neglect and financial exploitation. But this case presented additional challenges because Greg had ties to multiple states. If Linda filed a protective proceeding in Massachusetts but ultimately her father wanted to return to his long-time home, would Arizona honor the Massachusetts decree? What if Linda needed to sell the Vermont property to pay for her father's care? Unfortunately, back in 2009, there were no clear answers to these questions. We had to seek the appointment of a guardian and conservator here in Massachusetts, and Linda also had to retain Arizona counsel to seek appointment there once she moved her father back home. (Names and other identifying information have been changed to protect the parties’ privacy.)
A New Solution
On August 6, 2014, Massachusetts joined the majority of states in adopting the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). The new law is designed to provide an effective mechanism for resolving disputes across jurisdictions and facilitating transfers of guardianship cases among jurisdictions. As families have become more mobile and far flung, protective proceeding involving multiple states have become increasingly common. Protective proceedings are a creature of state law, and each state is its own sovereign jurisdiction. Before the adoption of the UAGPPJA, if an incapacitated person lived in more than one state or had property out of state, it was difficult and time-consuming to resolve the competing jurisdictional issues. The new law has several key provisions:
Initial jurisdiction -- Without a uniform law, there may be competing jurisdictions in a guardianship case (e.g., for an elderly parent who spends winters in Florida and summers in Massachusetts). The UAGPPJA provides that the individual's "home state" has primary jurisdiction, followed by a state in which he has a "significant connection," and establishes specific criteria for determining the appropriate jurisdiction. Exceptions are permitted in case of emergency. This will help to resolve the issue of competing jurisdictions.
Transferring guardianships -- If an individual under guardianship in another state moved to Massachusetts, prior law might have required the guardian to re-litigate the guardianship here. The UAGPPJA, allows a guardian to register an out-of-state order in Massachusetts without having to re-litigate issues such as capacity, which enables families to save time and money.
Interstate recognition -- Under prior law, a decree from one state was not necessarily recognized in another state. For example, if a conservator were appointed for Greg in Massachusetts, his Vermont real estate could not have been sold unless Vermont recognized the Massachusetts court order. States that have adopted the UAGPPJA (including Vermont, Arizona and Massachusetts) this process is streamlined.
The UAGPPJA also facilitates communication and cooperation between courts, and enables courts and parties to communicate, maintain records and respond to requests for assistance. It also addresses emergency situations and other special cases.
If another case like Greg’s were to come up today, the UAGPPJA would make the process of having the guardianship and conservatorship appointments recognized in other states would be much less costly and time-consuming than it was for Linda in 2009. The UAGPPJA has been endorsed nationally by a number of advocacy groups, including AARP and the Alzheimers Association. Margolis & Bloom attorneys, along with other members of the Massachusetts elder law bar, actively lobbied the legislature in support of the adoption of the UAGPPJA in Massachusetts. We hope that the new law will help resolve jurisdictional problems, increase uniformity in state law and practice, and improve the state's guardianship system.