Adult Guardianship, Limited Guardianship p, p and Conservatorship: - - PowerPoint PPT Presentation

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Adult Guardianship, Limited Guardianship p, p and Conservatorship: Legal Strategies

Navigating Capacity, Power of Attorney, Jurisdiction, Protective Placement and Other Issues

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUES DAY, FEBRUARY 8, 2011

Today’s faculty features: S tephen M. Worrall, Attorney, GeorgiaFamilyLaw.com : Worrall Law, Marietta, Ga. S chuyler F . Hoynes, Attorney, Lyle & Levine, Marietta, Ga.

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5

SCHUYLER HOYNES STEVE WORRALL

109 Anderson Street Marietta GA 30060 770-425-6060 steve@georgiafamilylaw.com 274 Washington Avenue Marietta GA 30060 770-421-9400 shoynes@lylelevine.com steve@georgiafamilylaw.com shoynes@lylelevine.com

6

M M th ’ K My Mother’s Keeper:

Planning for Incapacity and Strategies for Navigating Legal Remedies When You Can’t

Introduction

7

 Guardianships or conservatorships  Guardianships or conservatorships  Legal process utilized when a person can no longer

make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.

 Because establishing a guardianship may remove  Because establishing a guardianship may remove

considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable have proven ineffective or are unavailable.

Guardianship and Conservatorship

8

Conservatorship

 Guardian of the person  Guardian of the person  Guardian of the property  “Guardian”: a person appointed by the court to  Guardian : a person appointed by the court to

make decisions regarding the person of an adult adult

 “Conservator”: a person appointed by the court

to administer the property of an adult to administer the property of an adult

Rights That Might Be Affected

9

Rights That Might Be Affected

 A good guardian will take into account the

wishes and desires of the ward when making wishes and desires of the ward when making decisions about residence, medical treatments, and end-of life decisions. The courts will remove only those rights that the proposed ward is incapable of handling.

Rights that Might be Affected

10

Rights that Might be Affected

Wh th t i t di i t t i ht f th

 When the courts appoint a guardian, important rights of the

ward may be removed.

 These rights may include the right to:

D t i id

 • Determine residence;  • Consent to medical treatment;  • Make end-of-life decisions; 

Possess a driver’s license;

 • Possess a driver’s license;  • Manage, buy, or sell property;  • Own or possess a firearm or weapon;  • Contract or file lawsuits;  • Contract or file lawsuits;  • Marry; and  • Vote.

Due Process

11

Due Process

 Notice to the individual of all proceedings  Notice to the individual of all proceedings.  Representation of the individual by counsel.  Attendance of the individual at all  Attendance of the individual at all

hearings/court proceedings.

 Ability of the individual to compel confront and  Ability of the individual to compel, confront and

cross examine all witnesses.

 Allowance of the individual to present  Allowance of the individual to present

evidence.

Alternatives to Guardianship

12

p

 Living Trusts  Living Trusts  Representative Payeeship (RP)  Healthcare Power of Attorney (Living Will  Healthcare Power of Attorney (Living Will,

Advance Healthcare Directive)

 Joint Ownership or accounts  Joint Ownership or accounts  Powers of Attorney

Alternatives to Guardianship

13

Continued

 Living Trusts

 May be used as a mechanism to manage

propert both prior to and after death property both prior to and after death;

 Provides details as to how assets and income

earned therefrom are distributed after death; earned therefrom are distributed after death;

 Allows Successor Trustee to manage donor’s

financial affairs upon incapacity or disability; and p p y y

 Not subject to probate proceedings

Alternatives to Guardianship Continued

14

Continued

 Representative Payeeship (RP)

 Form of money management designed for

individuals who are unable to manage their own benefit checks due to physical or mental disability benefit checks due to physical or mental disability

 Paid to RP directly, who is then responsible for

ensuring basic needs of beneficiary are paid; any f d l ft di tl t th b fi i funds left may go directly to the beneficiary

 Generally used when dealing with income from

SSA or VA SSA or VA

 These institutions reserve the right to appoint an RP,

regardless of legal competence of the beneficiary

Alternatives to Guardianship Continued

15

Continued

 Living Wills  Living Wills

 Legal document which allows a person to make

known his or her wishes regarding life-prolonging g g p g g medical treatments

 May also be referred to as an “advance directive

f h lth ” “h lth ” “h lth for health care,” “health care proxy,” “health care directive,” or “physician’s directive”

Alternatives to Guardianship Continued

16

Continued

 Joint Ownership Accounts

 Most simple way to avoid court-supervised

conservatorship

 Authorizes a second party to access bank accounts  Authorizes a second party to access bank accounts

and to pay bills on your behalf or to manage real property by becoming a joint owner of the property

 Issues:

 If home or real property is titled jointly, co-owner will be

unable sell without consent of the other owner who must unable sell without consent of the other owner, who must have capacity

 If joint owner is sued, your assets may be seized as well

Alternatives to Guardianship Continued

17

Alternatives to Guardianship Continued

 Powers of Attorney  Powers of Attorney

 Limited  General  General  Durable  Springing  Springing

Alternatives to Guardianship Continued

18

Continued

 Powers of Attorney: Limited

 This may be limited as to either time or scope

 Example: You are planning a trip to China, which will

last for 60 days; you wish to get your legal affairs in last for 60 days; you wish to get your legal affairs in

• rder before you begin your travels. Since you will be

away for home for so long, you decide to name your brother as your agent to handle your financial affairs y g y while you are away. You specify in your POA that the powers granted to your brother cease upon the date of your return home. Further, you limit his power to only those needed to pay your bills – lest he sell your lake house while you’re away!

Alternatives to Guardianship Continued

19

Continued

 Powers of Attorney: General

 General Durable Power of Attorney, Like any classic agency  General Durable Power of Attorney, Like any classic agency

relationship, provides the Attorney-in-Fact with legal authority to act

• n the principals behalf

 Often, General Authority shall include, but is not limited to:

 Using assets to pay everyday expenses and those of the principal’s

family;

 Buying, selling, maintaining, pay taxes on, and mortgage real estate and

• ther property;

C ll ti S i l S it M di th t b fit

 Collecting Social Security, Medicare, or other government benefits;  Investing money in stocks, bonds, and mutual funds;  Handle transactions with banks and other financial institutions;  Buying and selling insurance policies and annuities for the principal;

y g g p p p ;

 Filing and paying taxes of the principal;  Hiring someone to represent principal in court;  Managing principal’s retirement accounts.

DURABLE POWERS OF

20

DURABLE POWERS OF ATTORNEY: The Need for a More Protective Power of Attorney

Durable Powers of Attorney

21

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 Under a traditional Power of Attorney, the

i i l' i it ld t ti ll principal's incapacity would automatically terminate the agency because of the assumption that an agent acts at the direction of assumption that an agent acts at the direction of the principal vesting the principal with power to terminate the agency at any time.

 The principal's incapacity would thus remove both

• f those essential elements of the relationship.

 Why then develop a Durable Power of Attorney  Why then develop a Durable Power of Attorney

instead of using another Legal Agency Principal?

Durable Powers of Attorney

22

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 Durable POAs survive the incapacity of the  Durable POAs survive the incapacity of the

principal, allowing the agent to continue acting for the principal as though he/she stepped into p p g pp the shoes of the principal

 The purpose of the Durable POA is to provide

p p p an alternative to conservatorship, with powers given to the agent that are as broad, if not broader, than those traditionally undertaken by conservators.

Durable Powers of Attorney

23

y

M t i l i f f t ti

 Most inclusive form of protection over a

principal who has become incapacitated Conser atorships are c mbersome intr si e

 Conservatorships are cumbersome, intrusive

and expensive Other types of arrangements are generally

 Other types of arrangements are generally

limited in the scope of assets that can be managed managed.

Durable Powers of Attorney

24

y

 Common phrases denoting durability of POA

i l d include:

 “This POA shall not be affected by subsequent

disability or incapacity of the principal or the lapse disability or incapacity of the principal or the lapse

• f time” or

 “This power of attorney shall become effective  This power of attorney shall become effective

upon the disability or incapacity of the principal.”

Durable Powers of Attorney:

U if D bl P f Att A t (UDPAA)

25

Uniform Durable Power of Attorney Act (UDPAA)

36 St t H Ad t d Th A t

 36 States Have Adopted The Act  Developed from Uniform Probate Code § 5-

501 505 501-505

 Original intent of the durable power of attorney

was to address a specific social problem: the was to address a specific social problem: the need for an economical method of assisting mentally frail adults with their financial and personal business matters.

Durable Powers of Attorney: Scope

26

y p

U E ti f W itt D bl P f

 Upon Execution of a Written Durable Power of

Attorney, the Scope of Authority of the Attorney-in-Fact shall be bound to the written Attorney-in-Fact shall be bound to the written terms

 Evaluation of the principal’s assets business  Evaluation of the principal s assets, business

transactions, and contractual needs shall assist in drafting the correct terms to which such scope must be limited

Durable Powers of Attorney:

Benefits of General Authority

27

Benefits of General Authority

 A General Durable Power of Attorney is often

b fi i l f l f ili l l ti hi i hi h beneficial for close familial relationships in which the principal has not expressed any limiting powers that the Attorney-in-Fact must abide to powers that the Attorney-in-Fact must abide to.

 Leaving open this scope of authority

simultaneously leaves open the possibility of simultaneously leaves open the possibility of abuse of power.

 States have remedied this abuse by imposing

y p g criminal penalties and civil remedies for abuse of power of attorney.

Durable Powers of Attorney:

Limited vs Specific Authority

28

Limited vs. Specific Authority

 Specific Durable Power of Attorney provides  Specific Durable Power of Attorney provides

the Attorney-in-Fact with legal authority to act

• n the principals behalf only in specific or

p p y p limited instances in which the principal has granted such authority

 Careful drafting of these terms to meet the

principal’s needs will further assure the principal

• f the desired protection of his property upon
• f the desired protection of his property, upon

disability or incapacitation.

Durable Powers of Attorney: Transfer of Authority

29

Transfer of Authority

 Immediate Authority: Unless otherwise directed, a

y U , power of attorney becomes effective immediately

 Dangers:

 Agent can act on behalf of the principal without

consent of the principal P i i l d t h t b i it t d i d

 Principal does not have to be incapacitated in order

for POA to take effect

 Generally used by married couples (who really trust  Generally used by married couples (who really trust

each other!) and older persons whose adult children may already be handling their financial affairs

Durable Powers of Attorney:

Transfer of Authority

30

Transfer of Authority

 Springing Authority: Power of Attorney will take

effect only upon disability or incapacity of the effect only upon disability or incapacity of the principal.

 However, determination of whether the principal is

“disabled” may arise a dispute between the Attorney-in- y p y Fact and institutions with which the Attorney-in-Fact is dealing on behalf of the principal

 UDPAA: States adopting Act have further defined “disability

i it ” t id th d f t d t

• r incapacity,” to avoid the need of a court order to

determine this unascertainable circumstance.

 This triggering event for the Durable Power of

Attorney to become effective upon the incapacity of Attorney to become effective upon the incapacity of the principal is often determined by a physician.

Guardianship of the Person

31

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 When the court appoints a guardian of the person, the

guardian may have the following responsibilities: g y g p

 • Determine and monitor residence.  • Consent to and monitor medical treatment.

C t d it di l i h

 • Consent and monitor non-medical services such as

education and counseling.

 • Consent and release of confidential information.  • Make end-of-life decisions.  • Act as representative payee.  • Maximize independence in least restrictive manner.  Maximize independence in least restrictive manner.  • Report to the court about the guardianship status at least

annually.

Conservatorship

32

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 A Conservator is a person or institution appointed

by a court to manage the property and financial ff i f W d affairs of a Ward.

 When the court appoints a conservator, the

following responsibilities are assigned: g p g

 • Marshall and protect assets.  • Obtain appraisals of property.  • Protect property and assets from loss  • Protect property and assets from loss.  • Receive income for the estate.  • Make appropriate disbursements.  • Obtain court approval prior to selling any asset.  • Report to the court or estate status.

Differences Between Guardians and Conservators

33

Conservators

 Guardianship  Guardianship

 Makes day-to-day decisions on Ward’s behalf  May include small financial decisions  May include small financial decisions  Major financial decisions left to Conservator if one

is appointed

 Conservatorship

 Makes financial decisions on Ward’s behalf

Petition to the Court

34

 Alternatives:  Alternatives:

 Petition solely for Guardianship  Petition solely for Conservatorship  Petition solely for Conservatorship  Petition for both Guardianship and

Conservatorship

Considerations for Guardianship

35

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 Capacity to make decisions

p y

 Decisions Requiring Assistance  Decisions Not Requiring Assistance  Decisions Not Requiring Assistance  Better Alternatives?

When is Guardianship Needed?

36

p

 Proposed Ward is unable to make decisions

p regarding basic needs

 Inability to make these decisions may leave

y y Ward vulnerable to fraud or undue influence

Guardianship Applications

37

p pp

 Often applied to

 Elderly persons with advanced stages of

dementia (Alzheimer’s)

 Mental disabilities  Injuries affecting cognitive abilities

 Should NOT apply to

 Persons able to make decisions re basic needs  Physical disabilities

Conservatorship

38

p

 Conservators have court-ordered authority and

responsibility to manage the affairs of those who can no longer make their own decisions about finances.

 Issues:  Time consuming and expensive  Time consuming and expensive  Requires detailed record keeping of all income and

expenses of the ward, which must be submitted to the court court

 Conservator may be required to post bond to cover the

value of the ward’s assets (can be very expensive) P h U S iti h h fil d f

 Persons who are non-U.S. citizens or who have filed for

bankruptcy are generally ineligible to serve as a conservator

Considerations for Conservatorship

39

Conservatorship

 Is Ward able to make financial decisions  Is Ward able to make financial decisions  Better alternative available?

 Representative Payeeship  Representative Payeeship  Joint Account Holder  Financial Power of Attorney  Financial Power of Attorney

When Conservatorship Needed

40

p

 Ward can no longer make decisions necessary  Ward can no longer make decisions necessary

to manage property or finances

 Examples:  Examples:

 Ward gives away large sums of money to

“scammers,” strangers, or even family members

 Bills fail to be paid on time or remain unopened  Ward makes expensive purchases he/she cannot

afford afford

Guardianship is Not Always a Long Term Arrangement

41

Long-Term Arrangement

 Goal of effective guardianship is to be able to

g p restore the rights of the individual who, for whatever reason, has had some of them removed by a court after due process by a court after due process.

 In many instances once a guardianship has been

initiated by a court, it is in place until the y , p incapacitated person dies. However, an annual review and assessment will monitor the need for maintaining or terminating a guardianship and maintaining or terminating a guardianship, and alert the court to a potential restoration of some or all of the incapacitated person’s rights.

Types of Guardianship

42

yp p

 1

Limited (temporary) (emergency)

 1. Limited (temporary) (emergency)  2. Full (Plenary) (Permanent)

Temporary or Limited Guardianship

43

Guardianship

 Limited as to  Limited as to

 Time  Scope  Scope

 Guardian has only those powers granted by

the court order appointing the guardian. the court order appointing the guardian.

Examples Where Limited Guardianship May Be Appropriate

44

May Be Appropriate

 Developmentally disabled person  Developmentally disabled person

 able to take care of his own personal care needs  difficulty with financial concepts.

 Elderly person in the early stages of dementia

 still be able to function and make decisions about

voting driving to the grocery store and making voting, driving to the grocery store and making change while shopping

 needs assistance with issues requiring more

q g analytical thinking, such as more complex medical decisions or investment and financial decisions.

Full or Permanent Guardianship

45

p

 Should be granted only if no alternative exists  Should be granted only if no alternative exists  Allows Guardian to Make virtually ALL

decisions on behalf of Ward decisions on behalf of Ward

Protective Placement Issues

46

 Common issues seen in guardianship  Common issues seen in guardianship

proceedings involve wards who are mentally ill

• r abusing drugs and/or alcohol

g g

 Many petitioners believe that by virtue of being

named as guardian for the ward, they will be able to force the ward into treatment programs or to take their medications

 Conflicts often arise between the ward’s rights vs  Conflicts often arise between the ward s rights vs.

their need for treatment

Capacity

47

 What is at Stake?

 Parens patriae  Loss of fundamental rights

g

 Lack of clinical background in judges

Clinician statement often brief & conclusory

 “Patient has dementia of Alzheimer’s type & not able to

make decisions.”

Obj ti bj ti

 Objective vs. subjective

48

Evolution of Incapacity Determination

49

Determination

 14th century English law & Colonial times:

y g parens patriae

 Judicial determination that individual is an

idiot, lunatic, insane person, person of unsound mind non compos mentis unsound mind, non compos mentis, spendthrift, senile

 Medical labels such as “mental disability”

State Definitions

50

 Medical condition  Functional ability  Cognitive element  Necessity or harm test  Necessity or harm test

Guardianship Capacity Assessment Handbook for Judges

51

Handbook for Judges

52

53

 M= Medical condition  M Medical condition  C= Cognitive capacity  F= Functional capacity  F= Functional capacity  V= Values

R Ri k

 R= Risks  E= Means to Enhance capacity

Medical Condition Causing Functional Disability

54

Functional Disability

 In the past, many state laws included “physical

p , y p y illness”, “physical disability”, “advanced age” &”other cause(s)” as justifications for recommending guardianship These labels were vague &

• guardianship. These labels were vague &

discriminatory & therefore resulted in subjective judicial decisions. j

 Now judges are more “evidence-based” & therefore

require information on the specific problem that ld b i di i i h d it could be causing diminished capacity.

 Some medical conditions are temporary & reversible.

Cognitive Functioning Component

55

Component

 Cognitive functioning includes alertness or arousal,

memory reasoning language visual spatial ability & memory, reasoning, language, visual-spatial ability, &

• insight. Neurological and psychiatric disorders may have

an impact on the person’s ability to process information. Th 1997 UGPPA d fi i it t d

 The 1997 UGPPA defines an incapacitated person as

someone who is “…unable to receive & evaluate information or make or communicate decisions to such an extent that the person lacks the ability to meet such an extent that the person lacks the ability to meet essential requirements for physical health, safety, or self- care even with appropriate technological assistance”. I t t “ iti f ti i ” i t f th

 In some states, “cognitive functioning” is a part of the

statutory standards for determining capacity.

Everyday Functioning Component

56

Component



Allied health professionals (mostly occupational therapists) divide everyday functioning into (a) activities of daily living [ADLs] such as grooming functioning into (a) activities of daily living [ADLs] such as grooming, toileting, eating, transferring, dressing, etc. & (b) instrumental activities

• f daily living [IADLs] such as the ability to manage finances, health, &

functioning in the home & community.



Until recently state law required tests for ADLs & IADLs were mostly vague



Until recently, state law required tests for ADLs & IADLs were mostly vague & subjective - e.g., “incapable of taking care of himself”, “unable to provide for personal needs &/or property management” or “incapable of taking proper care of… self or property, and fails to provide for the person’s family.” y



Vague standards lead to judgments of incapacity based on an opinion of the reasonableness of a person’s behavior, which is a subjective assessment - not evidence-based.



Several state standards are now more objective They focus only on the



Several state standards are now more objective. They focus only on the ability to provide for one’s “essential needs” such as an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety.”

Consistency of Choices with Values, Preferences & Patterns

57

Preferences, & Patterns

 The person’s capacity reflects the consistency of

h i ith hi /h lif tt d choices with his/her life patterns, expressed values, & preferences. Choices that are linked with lifetime values are rational for that person if th t id th even if they are outside the norm.

 Values are important for assessing capacity and

for determining a plan for guardianship or g p g p alternatives to guardianship.

 The person’s core values may affect his/her (a)

choice of guardian or another person to assist and choice of guardian or another person to assist and (b) preferences about medical decisions, financial decisions, & living arrangements.

Risk of Harm & Supervision Needed

58

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 Most state laws require that the guardianship is necessary to

provide for the essential needs of the person because there are no provide for the essential needs of the person because there are no

• ther feasible options so that imposing guardianship is the least

restrictive alternative for addressing the proven substantial risk of harm.

 Social & environmental supports may decrease the risk. Lack of

supports may increase the risk. So risk is determined not only by the condition itself but by consideration of the adequacy & availability of supports in the environment. y pp

 The level of supervision is determined by the judge & must match

the risk of harm to the person & the corresponding level of supervision required to decrease that risk. Sometimes risk is low & can be addressed with a less restrictive

 Sometimes, risk is low & can be addressed with a less restrictive

alternative or limitation to guardianship. Sometimes less restrictive alternatives have failed or are inappropriate so that a full guardianship is needed.

Means to Enhance Capacity

59

p y

 The Court needs to be aware of the ways that capacity can

be enhanced through practical accommodations & medical psychosocial or educational interventions medical, psychosocial, or educational interventions.

 The mere existence of a physical disability should not be

grounds for guardianship since most can be accommodated with the guidance of the individual g

 The means for enhancing capacity informs many judicial

actions:

 Maximizing capacity at the hearing  Determining appropriate review period for judicial review,

especially if restoration of capacity is possible.

 Determining treatments, services, and habilitation in the

person’s plan person’s plan.

60

 Revised in 1997  Revised in 1997  Comprehensive act addressing all aspects of

guardianships and protective proceedings for both minors and adults

 States may enact the UAGPPJA either

t l t f th b d UGPPA separately or as part of the broader UGPPA or the even broader Uniform Probate Code (UPC), of which the UGPPA forms a part. (UPC), of which the UGPPA forms a part.

Problems of Multiple Jurisdictions

61

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 Guardianship cases governed by state law

Guardianship cases governed by state law

 Guardianship cases governed by state law

Guardianship cases governed by state law

 50 states = 50 different state laws

50 states = 50 different state laws

 Social mobility

Social mobility creates creates conflicts within law conflicts within law Soc a

• b ty

Soc a

• b ty c eates

c eates co cts t a co cts t a

 No state has the same rules for

No state has the same rules for

  Recognition

Recognition

  Transfer

Transfer

  Jurisdiction

Jurisdiction

Need for an effective mechanism for resolving

 Need for an effective mechanism for resolving

multi-jurisdictional disputes

Child Custody Analogy

62

y gy

 Similar jurisdiction problems in child custody

Similar jurisdiction problems in child custody

 Similar jurisdiction problems in child custody

Similar jurisdiction problems in child custody

 If parents live in different states, both courts could

If parents live in different states, both courts could have jurisdiction to enter custody orders have jurisdiction to enter custody orders

 Confusion and conflict

Confusion and conflict until 1968 until 1968 Uniform Child Uniform Child Custody Jurisdiction Act Custody Jurisdiction Act

 Current

Current version: 1997 version: 1997 Uniform Child Custody Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Jurisdiction and Enforcement Act (UCCJEA)

 Nearly every state has UCCJEA so courts are

Nearly every state has UCCJEA so courts are familiar with the basic concepts familiar with the basic concepts

UAGPPJA: Adults Only

63

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 UAGPPJA modeled after UCCJEA

UAGPPJA modeled after UCCJEA

 UAGPPJA modeled after UCCJEA

UAGPPJA modeled after UCCJEA

 UCCJEA applies to minors and addresses

UCCJEA applies to minors and addresses j i di i l i j i di i l i jurisdictional issues jurisdictional issues

 UAGPPJA applies only to adult proceedings

UAGPPJA applies only to adult proceedings

 UAGPPJA applies only to adult proceedings

UAGPPJA applies only to adult proceedings

 Adult guardianship is NOT about custody

Adult guardianship is NOT about custody g p y g p y

UAGPPJA: General Objectives

64

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 Guardianship orders entered in one state can

Guardianship orders entered in one state can

 Guardianship orders entered in one state can

Guardianship orders entered in one state can be be recognized or enforced recognized or enforced in another in another

 Established cases can be efficiently

Established cases can be efficiently transferred transferred from one state to another from one state to another

 Initial jurisdiction

Initial jurisdiction to appoint a guardian fixed in to appoint a guardian fixed in the court of one and only one state the court of one and only one state the court of one and only one state the court of one and only one state

Key Multi-State Problems

65

y

 Recognition: how to have authority granted in

Recognition: how to have authority granted in

 Recognition: how to have authority granted in

Recognition: how to have authority granted in

• ne state recognized or enforced in another
• ne state recognized or enforced in another

state state

 Transfer: how to move case from one state to

Transfer: how to move case from one state to another another another another

 Initial Jurisdiction: where to begin the case

Initial Jurisdiction: where to begin the case when more than one possible jurisdiction when more than one possible jurisdiction when more than one possible jurisdiction when more than one possible jurisdiction

Recognition: Issues

66

g

 Examples: Sale of real estate or residential

Examples: Sale of real estate or residential

 Examples: Sale of real estate or residential

Examples: Sale of real estate or residential placement in another state placement in another state

 Issue: Will guardian’s authority be honored in

Issue: Will guardian’s authority be honored in

 Issue: Will guardian s authority be honored in

Issue: Will guardian s authority be honored in another state? another state?

 Issue: States may have different criteria

Issue: States may have different criteria

 Issue: States may have different criteria

Issue: States may have different criteria (capacity, limited powers, rights) (capacity, limited powers, rights)

 Issue: Who monitors, where to report

Issue: Who monitors, where to report

 Issue: Who monitors, where to report

Issue: Who monitors, where to report

 Issue: Need simple, low expense process

Issue: Need simple, low expense process

Recognition: Current Law

67

g

 Most

Most states have some process to allow out states have some process to allow out-

 Most

Most states have some process to allow out states have some process to allow out

• f
• f-
• state

state conservator conservator to transact financial to transact financial matters in another state matters in another state

 Administrative filing of order

Administrative filing of order

F t t h t i th t t h t i th

 Few

Few states have any process to recognize the states have any process to recognize the authority of an out authority of an out-

• of
• f-state

state guardian guardian to make to make personal decisions personal decisions personal decisions personal decisions

Recognition: Under UAGPPJA

68

g

 Authorizes registration in a local court of a

Authorizes registration in a local court of a

 Authorizes registration in a local court of a

Authorizes registration in a local court of a guardianship from another state guardianship from another state

 Provides that upon registration the guardian

Provides that upon registration the guardian

 Provides that upon registration, the guardian

Provides that upon registration, the guardian may exercise in the registration state all may exercise in the registration state all powers authorized in the order of appointment powers authorized in the order of appointment p pp p pp except as prohibited under the laws of the except as prohibited under the laws of the registration state. registration state.

Transfer: Issues

69

 Example: Appropriate to move individual and

Example: Appropriate to move individual and

 Example: Appropriate to move individual and

Example: Appropriate to move individual and established guardianship to new state established guardianship to new state

 Issue: May be necessary to start over

Issue: May be necessary to start over

 Re

Re-

• determine capacity

determine capacity

 Re

Re-

• appoint a guardian in new state

appoint a guardian in new state

 Issue: Catch 22

Issue: Catch 22 -

• New court may not have

New court may not have jurisdiction until individual is moved, but can’t jurisdiction until individual is moved, but can’t move until new court appoints a guardian move until new court appoints a guardian move until new court appoints a guardian move until new court appoints a guardian

Transfer: Current Law

70

 Most

Most states require all of the procedures for an states require all of the procedures for an

 Most

Most states require all of the procedures for an states require all of the procedures for an

• riginal appointment be repeated
• riginal appointment be repeated

 Most

Most states do not have jurisdiction until after states do not have jurisdiction until after individual has moved individual has moved individual has moved individual has moved

Transfer: Under UAGPPJA

71

 To transfer two court orders are required

To transfer two court orders are required

 To transfer, two court orders are required

To transfer, two court orders are required

 File with court giving up the case

File with court giving up the case

 File with court receiving the case

File with court receiving the case

 File with court receiving the case

File with court receiving the case

 Notice and opportunity for hearing in both

Notice and opportunity for hearing in both

Transfer: Under UAGPPJA

72

 Transferring court must find that:

Transferring court must find that:

 Transferring court must find that:

Transferring court must find that:

 Individual moving permanently to other state

Individual moving permanently to other state

 No one has objected to transfer or person

No one has objected to transfer or person

 No one has objected to transfer or person

No one has objected to transfer or person

• bjecting has not established that transfer is
• bjecting has not established that transfer is

contrary to individual’s interests contrary to individual’s interests

 Plans for individual in new state are reasonable

Plans for individual in new state are reasonable and sufficient and sufficient

Transfer: Under UAGPPJA

73

 Receiving court must recognize order from

Receiving court must recognize order from

 Receiving court must recognize order from

Receiving court must recognize order from transferring state, including the determination transferring state, including the determination

• f individual’s incapacity and the identity of
• f individual’s incapacity and the identity of

p y y p y y guardian appointed guardian appointed

Initial Jurisdiction: Issues

74

 Example: Domicile is hard to determine

Example: Domicile is hard to determine p

 When have even split of time in two states

When have even split of time in two states

 When living in a nursing home

When living in a nursing home

 When unclear whether individual has capacity to form

When unclear whether individual has capacity to form

 When unclear whether individual has capacity to form

When unclear whether individual has capacity to form intent to change domicile intent to change domicile

 Issue: Few states have mechanism to determine

Issue: Few states have mechanism to determine which of several possible jurisdictions is which of several possible jurisdictions is which of several possible jurisdictions is which of several possible jurisdictions is appropriate appropriate

 Issue: Basing jurisdiction on physical presence

Issue: Basing jurisdiction on physical presence g j p y p g j p y p invites “granny snatching” to create jurisdiction invites “granny snatching” to create jurisdiction in another state in another state

Initial Jurisdiction: Current Law Initial Jurisdiction: Current Law

75

 In nearly all states, a guardian may be

In nearly all states, a guardian may be

 In nearly all states, a guardian may be

In nearly all states, a guardian may be appointed in a state in which individual is appointed in a state in which individual is domiciled or is physically present domiciled or is physically present

 In nearly all states, a conservator may be

In nearly all states, a conservator may be appointed in a state in which individual is appointed in a state in which individual is domiciled or has property domiciled or has property domiciled or has property domiciled or has property

 Resulting in:

Resulting in:

 Extended litigation over jurisdiction

Extended litigation over jurisdiction

 Extended litigation over jurisdiction

Extended litigation over jurisdiction

 Incentives for “granny snatching”

Incentives for “granny snatching”

Initial Jurisdiction: Under UAGPPJA Initial Jurisdiction: Under UAGPPJA

76

 Helps courts determine primary jurisdiction by

Helps courts determine primary jurisdiction by

 Helps courts determine primary jurisdiction by

Helps courts determine primary jurisdiction by establishing criteria to determine the individual’s establishing criteria to determine the individual’s “home state” and “significant connection state” “home state” and “significant connection state”

 “Home state” generally is the state in which the

“Home state” generally is the state in which the individual has been present for individual has been present for at least six months at least six months immediately before the guardianship commenced immediately before the guardianship commenced immediately before the guardianship commenced immediately before the guardianship commenced

 “Significant connection state” is the state in which the

“Significant connection state” is the state in which the individual has a significant connection, individual has a significant connection, other than

• ther than

g mere physical presence mere physical presence, and where substantial , and where substantial evidence concerning the individual is available evidence concerning the individual is available

Initial Jurisdiction: Under UAGPPJA Initial Jurisdiction: Under UAGPPJA

77

 General Rule:

General Rule:

 General Rule:

General Rule:

 Home state has primary jurisdiction to appoint a

Home state has primary jurisdiction to appoint a guardian guardian g

 Primary jurisdiction continues to apply for up to

Primary jurisdiction continues to apply for up to six months following move to another state six months following move to another state

 Significant connection state has jurisdiction if

Significant connection state has jurisdiction if

 individual does not have a home state OR

individual does not have a home state OR h t t d li d j i di ti b i ifi t h t t d li d j i di ti b i ifi t

 home state declined jurisdiction because significant

home state declined jurisdiction because significant connection state is more appropriate forum connection state is more appropriate forum

Initial Jurisdiction: Under UAGPPJA Initial Jurisdiction: Under UAGPPJA

78

 Significant connection state also has

Significant connection state also has

 Significant connection state also has

Significant connection state also has jurisdiction if jurisdiction if

 no proceeding commenced in the respondent’s

no proceeding commenced in the respondent’s p g p p g p home state or another significant connection state home state or another significant connection state

 no objection to court’s jurisdiction filed, and

no objection to court’s jurisdiction filed, and

 court concludes that it is a more appropriate

court concludes that it is a more appropriate forum than a court in another place forum than a court in another place

Initial Jurisdiction: Under UAGPPJA

79

 Even if not a home state or significant

Even if not a home state or significant

 Even if not a home state or significant

Even if not a home state or significant connection state, a state in which individual is connection state, a state in which individual is physically present has jurisdiction to appoint physically present has jurisdiction to appoint di if i t di if i t an an emergency emergency guardian if an urgency exists guardian if an urgency exists

 A court where

A court where property property is located has is located has jurisdiction to appoint a conservator or enter jurisdiction to appoint a conservator or enter jurisdiction to appoint a conservator or enter jurisdiction to appoint a conservator or enter another protective order with respect to another protective order with respect to property located in the state property located in the state p p y p p y

Initial Jurisdiction: Under UAGPPJA

80

 Once appointed guardian’s authority

Once appointed guardian’s authority

 Once appointed, guardian s authority

Once appointed, guardian s authority continues until terminated continues until terminated

 Jurisdiction not lost because incapacitated

Jurisdiction not lost because incapacitated individual in another state for six months or individual in another state for six months or l l longer longer

81

Resources

82

 Uniform Law Commission www.nccusl.org  ABA Commission on Law and Aging Guardianship

Jurisdiction Web page: www.abanet.org/aging/guardianshipjurisdiction/home.html N ti l G di hi A i ti di hi

 National Guardianship Association www.guardianship.org  Alzheimer’s Association www.alz.org  Provisions of Protective Payee Status Daniel J Luchins  Provisions of Protective Payee Status, Daniel J. Luchins,

David L. Roberts & Patricia Hanrahan, Department of Psychiatry, University of Chicago (2001)

Resources

83

 Why States Should Enact the Uniform Adult Guardianship and

Protective Proceedings Jurisdiction Act, American Bar Association (2009) Association (2009)

 The Six Pillars of Capacity Assessment in Guardianship

Proceedings, Erica Wood (2010)

 Durable Financial Power of Attorney: How it Works Shae Irving  Durable Financial Power of Attorney: How it Works, Shae Irving,

J.D., http://www.nolo.com/legal-encyclopedia/article-29936.html

 The Durable Power of Attorney’s Place in the Family of Fiduciary

Relationships Karen E Boxx 36 Ga L Rev 1 (2001-2002) Relationships, Karen E. Boxx, 36 Ga. L. Rev. 1 (2001-2002)

 Is Adult Guardianship or Conservatorship Right for Your

Situation?, Allison Smith Fletcher & Karianne Dickinson, http://privateweb law utah edu/ webfiles/academic/clinic/Ch1Intr http://privateweb.law.utah.edu/_webfiles/academic/clinic/Ch1Intr

• ductionToAdultGuardianshipandConservatorship.pdf

84

Questions? Questions?