By T. Joseph Murphy, Jr., Summer Associate
Hopefully you will never have to learn about the guardianship process, as you and your loved ones have powers of attorney, health care proxies, and other documents that protect against future disabilities. However, should you already have an adult guardianship or need to consider one, the process has become much more efficient, effective, and just.
The Uniform Adult Guardian Protective Proceedings Jurisdiction Act
On April 21, the Uniform Adult Guardian Protective Proceedings Jurisdiction Act (UAGPPJA) took effect in New York as Mental Hygiene Law Article 83. New York joins 37 other states, along with Puerto Rico and the District of Columbia, who have enacted the law. The purpose of the UAGPPJA is to prevent elder abuse and streamline a process that was rife with bureaucracy across the country.
What is an Adult Guardianship?
Unfortunately toward the end of life many older adults find themselves unable to make important decisions – medical or financial – because of Alzheimer’s, dementia, stroke, or some other medical conditions. As a result it may be necessary for a court to appoint a guardian to handle those important matters. First, the court must determine that a person is legally incapacitated. Then, it will appoint a guardian to assist the incapacitated person with their affairs. The guardian is typically a close family member most capable of performing the task, although this is not always the case. In some situations family members may not agree with the court’s chosen guardian, the guardian’s decisions, or the living situation of the incapacitated person.
Effect of the UAGPPJA on Adult Guardianships
Appointing a guardian is a process that families should only have to experience once. The proceedings can be expensive and sensitive medical information is often necessary to prove incapacitation. Before the passage of the UAGPPJA, to transfer a guardianship from New York to another state, or vice versa, the parties were required to complete another full guardianship process in the new state.
The UAGPPJA solved this problem by creating a standard procedure for the transfer of guardianships between states, provided that both states have enacted the law. First, the guardian must receive a provisional order to transfer from the transferring state. Then, the guardian presents the provisional order to a local court in the receiving state. The receiving court should review the transfer and accept guardianship as long as there are no issues or challenges. This prevents relitigation of entire guardianship proceedings which waste time and money.
Another problem was the unapproved movement of an incapacitated person from one state to another by a disgruntled family member, more commonly known as “granny snatching.” A simple example of the previous law is as follows:
Mom lives in Syracuse in the same home she has lived in for the last 20 years. She has never executed a power of attorney or a health care proxy. She has two children, Mary and Mike. Mary lives in Syracuse and Mike lives in New Jersey. Over the last few years, Mom’s Alzheimer’s has gotten worse. This hasn’t been a problem because Mary lives close by and helps Mom with her finances, doctor’s appointments, medicine, shopping, and any other needs. Mike comes to visit Mom when he knows Mary won’t be around, he packs up Mom’s things, and takes her back to New Jersey with him. In New Jersey, he initiates a proceeding to become Mom’s guardian because she is now considered mentally incapacitated. At the least, a long and expensive legal battle will ensue over who should be Mom’s guardian and where Mom should reside. In the meantime, there is no way Mary can return Mom to her home in Syracuse.
Under the UAGPPJA, which is enacted in both New York and New Jersey, a very different result occurs. The New Jersey court would determine that New York is Mom’s “home state.” Then, New Jersey would send the proceedings to New York and Mary may have Mom returned to her home. Then, any guardianship proceedings would occur in Syracuse. The law provides a very simple solution to a complicated problem. More information can be found here.
About the Author: T. Joseph Murphy, Jr., Mackenzie Hughes LLP Summer Associate, is a student at Syracuse University College of Law where he is an Executive Board Member of the Moot Court Honor Society and a Senior News Desk Officer of Impunity Watch. He is a graduate of Syracuse University’s Whitman School of Management where he earned a Bachelor of Science degree, cum laude, in Finance & Entrepreneurship and Emerging Enterprises.