For those of you who do much guardianship work, you’ll be interested in a recently-published legislative summary from the American Bar Association’s Commission on Law and Aging. Entitled STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM – 2014, the report does a good job of highlighting the strengths and weaknesses of Florida’s guardianship laws (F.S. Ch. 744) by shining a light on what other states are doing legislatively.
The ABA’s report includes information on 18 state enactments on adult guardianship from 15 states. The section I found most interesting focused on the growing problem of inter-state forum shopping in contested guardianship proceedings.
Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act:
Florida has existing legal theories for resolving multi-jurisdictional guardianship disputes on a case-by-case basis (as demonstrated in the Morrison case, which I wrote about here), but the best long-term solution is adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which has pretty much been endorsed by just about every organization that might possibly have an interest in the issue, including the National College of Probate Judges, the Conference of Chief Justices and State Court Administrators, the National Guardianship Association, the ABA’s Commission on Law and Aging, the National Academy of Elder Law Attorneys, and the Alzheimer’s Association (see here). For what it’s worth, I’ve been advocating for Florida’s adoption of the UAGPPJA since 2009, when legislation adopting the uniform act was introduced by Representative Elaine J. Schwartz as HB 305, then inexplicably withdrawn (see here).
In 2014, three states adopted the UAGPPJA, bringing the total to 40 states plus the District of Columbia and Puerto Rico that have adopted the uniform statute. Unfortunately, Florida is one of the few remaining states that has yet to adopt the UAGPPJA. That’s a problem that needs fixing ASAP. Here’s an excerpt from the ABA report:
In our increasingly mobile society, adult guardianships often involve more than one state, raising complex jurisdictional issues. For example, many older people own property in different states. Family members may be scattered across the country. Frail, at-risk individuals may need to be moved for medical or financial reasons. Thus, judges, guardians, and lawyers frequently are faced with problems about which state should have initial jurisdiction, how to transfer a guardianship to another state, and whether a guardianship in one state will be recognized in another.
Such jurisdictional quandaries can take up vast amounts of time for courts and lawyers, cause cumbersome delays and financial burdens for family members, and exacerbate family conflict — aggravating sibling rivalry as each side must hire lawyers to battle over which state will hear a case and where a final order will be lodged. Moreover, lack of clear jurisdictional guideposts can facilitate “granny snatching” and other abusive actions.
1. Background on Uniform Act. To address these challenging problems, the Uniform Law Commission in 2007 approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). The UAGPPJA seeks to clarify jurisdiction and provide a procedural roadmap for addressing dilemmas where more than one state is involved, and to enhance communication between courts in different states.
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2. Passage of Uniform Act by States. As it is jurisdictional in nature, the UAGPPJA cannot work as intended — providing uniformity and reducing conflict — unless all or most states adopt it. See Why States Should Adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
- In 2008, five states (Alaska, Colorado, Delaware, Utah and the District of Columbia) quickly adopted the Act.
- In 2009, the eight states adopting the Act include Illinois, Minnesota, Montana, Nevada, North Dakota, Oregon, Washington, and West Virginia.
- In 2010, seven states adopted the Act, including Alabama, Arizona, Iowa, Maryland, Oklahoma, South Carolina and Tennessee.
- In 2011 another ten states enacted the UAGPPJA, including Arkansas, Idaho, Indiana, Kentucky, Missouri, Nebraska, New Mexico, South Dakota, Vermont and Virginia.
- In 2012, six states passed the Uniform Act, including Connecticut, Hawaii, Maine, New Jersey, Ohio and Pennsylvania.
- In 2013, two additional states, Wyoming and New York, joined the list
In 2014, three states passed the Uniform Act, bringing the total to 40 states plus the District of Columbia and Puerto Rico. The Act is pending in additional states.
- Mississippi passed SB 2240, which was signed by the Governor in March.
- Massachusetts passed SB 2249, which was signed by the Governor in August.
- California SB 940, which was signed by the Governor in September.