The Legal Checkup Blog

Guardianship law expected to bring order out of ‘chaos’

Posted by Judith Flynn on Sat, Nov 01, 2014 @ 19:11 PM

Great article in Mass Lawyers Weekly - it shows some of the great advocacy of MassNAELA.

By: Pat Murphy October 16, 2014

Massachusetts judges will receive long-overdue guidance for resolving jurisdictional disputes when the new adult guardianship law goes into effect Jan. 1, while... guardians and conservators should find it easier to perform their duties across state lines, elder law attorneys say.

Signed by Gov. Deval L. Patrick on Aug. 5, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act provides a clear mechanism for deciding whether Massachusetts or another state should have jurisdiction when an incapacitated elderly person or disabled adult has contacts with multiple states.

In addition, the measure provides procedures for guardians and conservators to more efficiently exercise their authority outside the jurisdiction of the state in which they were appointed, while establishing a mechanism for transferring a guardianship or conservatorship from one jurisdiction to another.

“The act will let conservators and guardians focus more on the care of the individual rather than on dealing with the courts to get additional appointments,” said Judith M. Flynn, president of the Massachusetts chapter of the National Academy of Elder Law Attorneys.

MassNAELA joined the Massachusetts and Boston bar associations, Massachusetts Guardianship Association, AARP and other groups in supporting the reform measure.

Attorney John J. Ford advocated for passage of the act asdirector of the Elder Law Project for the Northeast Justice Center in Lynn. Ford said the statute will bring order to a “very chaotic” system in which Probate & Family Court judges “winged it” in the absence of a law providing clear guidance on addressing multi-jurisdictional disputes.

“The new law describes what the court is supposed to do in determining which state should have jurisdiction and whether the authority of a fiduciary appointed in another state should be conferred in Massachusetts,” Ford said.

West Springfield attorney Eileen Sullivan-Boss has been looking forward to the state’s adoption of the measure since the Uniform Law Commission finished drafting the model law in 2007.

“I can’t see any attorney who practices in this field as being anything but grateful for the adoption of this act,” said Sullivan-Boss, who in addition to practicing elder law is a registered guardian and member of the Massachusetts Guardianship Association.

Jurisdictional clarity

The Legislature enacted the legislation as Article 5A of G.L.c. 190B. The centerpiece of the law is the jurisdictional provision, §5A-203, which establishes a three-level priority for determining what state has jurisdiction over a protected person who is elderly or disabled.

Under §5A-203, the individual’s “home state” has primary jurisdiction to appoint a guardian or conservator, or enter a protective order. Section §5A-201(a)(2) defines “home state” as the state in which the adult who needs a surrogate decision-maker is “physically present.” The home state priority continues for up to six months following the individual’s move to another state.

Section §5A-203(2) provides secondary jurisdiction for a “significant-connection state,” which generally applies if the individual has not had a home state within the past six months or the home state has declined jurisdiction.

Section §5A-201(a)(3) defines “significant-connection state” as a state other than a home state with which the individual “has a significant connection other than mere physical presence.” The statute lists factors such as family ties, the location of the individual’s property, tax filing and voter registration as factors to consider for determining whether a significant connection exists.

Thirdly, the jurisdictional provisions operate to allow a state court in Massachusetts to exercise jurisdiction if the home state and all significant-connection states have declined jurisdiction because the commonwealth is the more appropriate forum.

Importantly, the act also allows for a state court to exercise special jurisdiction under extraordinary circumstances, such as the need for the appointment of a guardian in an emergency.

Flynn said it was critical that the act created a clear framework for state courts to resolve jurisdictional questions given the fact that today’s population is mobile and it is not uncommon for people to move from state to state and own property in different states.

“A court now has a lot of flexibility in determining whether to accept a case or to determine that it’s not the appropriate jurisdiction, or to make emergency orders in the meantime until another court is able to get involved,” Flynn said.

Out-of-state enforcement

The statute also will go a long way toward enabling guardians and conservators to perform their duties across state lines more efficiently. Conservators are appointed to administer the property of an adult; guardians make decisions regarding the person of an adult, such as medical care.

Ford said that Massachusetts courts in the past were often at a loss as to what to do when a guardian from another state sought to exercise his authority in the commonwealth on behalf of an elderly or disabled person.

“What do you do? Do you have authority to consent to medical treatment? Do you have authority to place her in a nursing home? All those questions were unanswered,” Ford said.

Section 5A-401 authorizes guardians appointed in other states to register guardianship orders in the commonwealth. Similarly, under §5A-402, conservators appointed in other states may register protective orders here.

Under the act, the effect of registering such orders is profound. Section 5A-403(a) provides that, upon registration of a an order from another state, “the guardian or conservator may exercise in the commonwealth all powers authorized in the order of appointment except those powers prohibited under the laws of the commonwealth.”

Flynn said that means those appointed as guardians and conservators in other states will no longer be required to apply separately for appointment in Massachusetts simply to have orders enforced. She noted that the appointment of a guardian or conservator in Massachusetts would similarly be honored in any other jurisdiction that has passed its own version of the statute.

“If I’m appointed in Massachusetts, but my protected person has property in another state, in the past I would have to go seek an appointment in that other state in order to sell the property,” Flynn said. “Now, there is a process under this act where you can just file your Massachusetts appointment in that other jurisdiction in order to accomplish what you need to accomplish.”

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has been passed in 39 other states. All the New England states, with the exception of New Hampshire and Rhode Island, have enacted the model law. A bill to adopt the act was introduced in the Rhode Island General Assembly earlier this year.

Transferring authority

Another central feature of the act is its provision for the transfer of guardianships and conservatorships from state to state when an incapacitated individual is expected to move.

Section 5A-301 sets forth procedures for the transfer of guardianships or conservatorships to another state, while §5A-302 provides for the acceptance of guardianships or conservatorships transferred from another state.

“The law provides efficiency, and with efficiency comes lower costs to the estate of someone with limited resources who is elderly or otherwise incapacitated,” Sullivan-Boss said.

“It can also be quicker,” she added. “You may have a person who is in an unsafe situation in another state and you want to transfer the guardianship.”

Sullivan-Boss said she also likes the fact that the new law encourages Massachusetts’ courts to communicate and cooperate with courts from other states.

Section 5A-104 expressly authorizes a court in Massachusetts to communicate with a court in another state concerning a proceeding arising under the act. In addition, Section 5A-105 authorizes courts here to request a court in another state to perform various tasks, including holding evidentiary hearings, compelling depositions, ordering mental evaluations, or ordering the production of financial records.

“The law facilitates communication between the courts to enhance protections for a vulnerable person with decisional incapacity,” Sullivan-Boss said.

She said it is important that the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act authorizes courts to sanction parties that engage in wrongful conduct in seeking to invoke the jurisdiction of the commonwealth’s courts.

Section 5A-207(a) permits a court to decline to exercise jurisdiction over a guardianship or conservatorship in the event of “unjustifiable conduct.”

Moreover, §5A-207(b) authorizes a court in Massachusetts to assess “reasonable expenses,” including attorneys’ fees and costs, in the event it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct.

The threat of sanctions can be important in dissuading family members from engaging in needless litigation over guardianship and conservatorship matters regarding a loved one, Sullivan-Boss said.

“Remember, the costs associated with litigation are going to reduce the resources that person needs for support,” she said.

Tags: elder law, Legal Check Up, Legal Documents, Estate Planning, lack of capacity