In an increasingly mobile society the legal system is bound to have occasional problems deciding what court has authority to regulate the care and custody of incapacitated adults. There are a number of well-known cases, and we have written about the problem here before, in cases involving New Jersey and Texas, Illinois and Wisconsin, and Minnesota and Pennsylvania, to name a few of the states involved. Now one of the cases we have previously covered has taken a surprising turn.

Laurence and Luke Graham presumably both thought they were acting in their mother’s best interests while they maintained a pitched battle in the Florida courts over her guardianship. The two brothers allegedly took turns hiding their mother, Betty Graham, from one another, and Laurence Graham was believed to have transferred at least $200,000 from an account in his and his mother’s joint names into his own name alone. The Florida courts stepped in, and appointed a neutral professional guardian (of the person and property—akin to Arizona’s guardianship and conservatorship).

In the meantime, Laurence Graham was apparently involved in moving his mother out of the jurisdiction, to California. He secured a Florida attorney who attempted to appear on behalf of his mother in the guardianship proceedings to argue that they should be dismissed. Instead, the Florida trial court held Laurence Graham in contempt for violating its orders and moving his mother without authority, and dismissed the lawyer’s petition to terminate the guardianship because (ruled the court) he really represented Laurence Graham. That was the status of the case when we visited it in August of 2007.

Now the Florida Court of Appeals has ruled on follow-up issues, and the case has taken a surprising turn. With regard to the contempt citation against Laurence Graham, the appellate court determined that service on Mr. Graham was not proper (though he undoubtedly knew about the pending contempt citation), and dismissed the contempt citation altogether.

The appellate judges also ruled that the trial court should have made a specific finding about the validity of a health care power of attorney signed by Ms. Graham naming Laurence before appointing Luke as guardian and effectively revoking the power of attorney. More of a surprise, however, was the appellate court’s ruling that the medical evaluations filed with the guardianship proceeding were too old—two of the three reports were written more than two months before the hearing. A more recent one obtained by Laurence (by a California psychiatrist who evaluated Ms. Graham after Laurence moved her to that state) indicated that Ms. Graham’s condition had improved, and that she wanted Laurence to make health care decisions for her. The Court of Appeals therefore dismissed the guardianship proceeding altogether. Graham v. Florida Dep’t. of Children and Families, December 5, 2007.

What lessons are there in the Graham cases for those of us who deal with guardianships and conservatorships in Arizona, rather than in Florida? A few suggest themselves:

• It makes no sense to antagonize the court system. If Betty Graham's improvement could be clearly shown, working inside the court system rather than in opposition should have gotten Laurence Graham the relief he sought without the threat of contempt and the cost and delay of appellate decisions.
• Moving the subject of a guardianship proceeding to another state, and changing names on financial accounts, makes a litigant look suspicious rather than improving his or her legal position.
• Lawyers who purport to represent the subjects of guardianship and conservatorship proceedings need to be very careful to see to it that they hear the voice of the client, rather than that of the caretaker or partisan in the proceeding. It does not assist either the proposed ward or the other litigants when the lawyer lets himself or herself become the issue in a bitter family dispute.
• Florida, California, and for that matter Arizona should all be looking at adopting a law that would make guardianships and conservatorships more portable, resolve interjurisdictional disputes, and eliminate the perception of any advantage to be gained by manipulating the residence of aging and incapacitated subjects. Such a law has recently been proposed by the National Conference of Commissioners on Uniform State Laws (NCCUSL), bearing the unfortunately unwieldy name of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the unpronounceable "UAGPPJA").

At Fleming & Curti, PLC, we expect to spend considerable effort over the next year or so seeking Arizona adoption of the UAGPPJA in Arizona. We hope elder law attorneys in other states will also see the urgency of getting some limits in place before the growing problem of interstate guardianship disputes becomes any worse.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2008 Fleming & Curti, P.L.C.
520-622-0400 /  FAX: 520-203-0240