The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has Passed!!
MassNAELA and several other groups have been advocating for passage of this important legislation for a few years, and I am pleased to report that we have finally succeeded! It is now awaiting Gov. Patrick's signature.
Several clients and their family members have asked for more information about this bill and how it would be beneficial to seniors and people with special needs who may be subjected to a guardianship proceeding at some point. Following is a summary of the benefits.
An increasing number of elders and disabled persons will require a surrogate decision-maker to be appointed by the Probate and Family Court if they lack the ability to make informed decisions about their medical care (guardianship) or finances (conservatorship) due to dementia or other conditions, if they have not appointed surrogate decision
makers in a Health Care Proxy and Durable Power of Attorney. The UAGPPJA addresses and resolves many of the problems our clients face through the guardianship and conservatorship process, which result in a significant financial and emotional burden. These problems include:
* MULTIPLE JURISDICTION ISSUES: Guardianship matters are handled through the state courts, and there are over 50 different guardianship systems in the country. It is frequently difficult to determine which state has appropriate jurisdiction because people move from state to state, people may own property or have contacts in multiple jurisdictions. The UAGPPJA provides the Courts with a mechanism to resolve multi-jurisdictional questions and disputes.
* VALIDITY OF AUTHORITY IN OTHER JURISDICTIONS: A frequent problem that would be resolved with the passage of the UAGPPJA is that the authority of a guardian or conservator appointed in one jurisdiction would be recognized in all other jurisdictions. The current system requires a guardian or conservator appointed in one state to file new pleadings to obtain appointment in the second jurisdiction in order to take action on behalf of the incapacitated or protected person. This may involve selling real estate owned in the second jurisdiction, making a placement in a residential facility, or dealing with a financial institution, as a few examples. The UAGPPJA provides a mechanism for guardians and conservators to act in other jurisdictions upon the filing of their appointment in that jurisdiction, without the need for a new filing. This simple procedure will avoid the unnecessary financial and emotional cost resulting from the current requirement to seek an appointment in multiple jurisdictions.
* ISSUES WITH TRANSFERRING AUTHORITY: Even if all parties are in agreement that an incapacitated person should be moved to another jurisdiction, there is no uniform mechanism for transferring the guardianship/conservatorship from one jurisdiction to the other. The UAGPPJA provides for acceptance and enforcement of guardianship and
conservatorship orders among jurisdictions.
In summary, the UAGPPJA provides much needed clarity and a mechanism to establish the most appropriate forum for each case, and provides significant discretion to the Massachusetts Courts to accept or reject jurisdiction of any matter based on the specific facts. Judges may exercise temporary orders as appropriate for the protection of respondents pending transfer to or acceptance by another jurisdiction. The UAGPPJA will enable communication and cooperation between courts, simplify procedures for guardians and conservators to act in multiple jurisdictions when necessary (for example, if the protected person has real estate to be sold in another state), and facilitate acceptance and enforcement of guardianship and conservatorship orders in other states. The UAGPPJA authorizes the courts to decline jurisdiction or impose other appropriate remedies if jurisdiction is acquired by unjustifiable conduct, an issue of growing concern among elder law attorneys who see elders being improperly subjected to the guardianship process as the result of family disputes.
The UAGPPJA provides real solutions with no budget attached. It will minimize the
financial and emotional burden on elders and their families who would otherwise have to initiate a second court proceeding simply to satisfy a Registry of Deeds, a care facility, or a financial institution that refuses to honor an out-of-state guardianship or conservatorship order. The UAGPPJA will be a win for our clients and their families, as well as the Commonwealth.
So, bravo to MassNAELA, the AARP, the ARC of Massachusetts, the Massachusetts Bar Association, the Alzheimer's Association, and all of the citizens of the Commonwealth who took the time to respond to our calls for advocacy.
