Families — and practitioners — frequently face a problem associated with our mobile society. After a family member moves across state lines, in which state should any court actions be filed? In other words, who has jurisdiction over adult guardianship proceedings?
Wait — isn’t there a law on that?
We’ve written before about the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. That law has been adopted by 47 seven states — plus the District of Columbia, Puerto Rico and even the U.S. Virgin Islands. The uniform law attempts to make it clear where proceedings should — and should not — be initiated.
As an aside, you might wonder which states have not gotten on board. Legislatures in Florida, Kansas and Texas haven’t stepped up yet. Do you live in one of those states? Ask your legislators what’s going on.
Arizona has adopted the Uniform Act. So, incidentally, have Georgia and North Carolina. And today we’re going to tell you a story about a cross-border dispute involving those two states. Will it tell us much about Arizona law? Yes, actually — the Georgia court applied a version of the law almost identical to Arizona’s.
A Georgia case on adult guardianship jurisdiction
Robert Brown lived in Georgia for almost a half century. After he divorced his first wife, he remarried in 2001. He and his second wife continued to live in rural Georgia.
In 2017, Mr. Brown’s step-daughter helped the couple move to Charlotte, North Carolina, to be nearer to her. They ultimately went into an assisted living facility near Charlotte.
Mr. Brown has a daughter from his first marriage. No one told her about the move — according to his daughter-in-law, he asked that she not be informed. Soon after his arrival, Mr. Brown had an episode where he got lost driving a golf cart on the property, and he was moved into the memory care unit.
The daughter hired a private investigator, who quickly located Mr. Brown. She visited, but was refused access to medical information (Mr. Brown had signed a health care power of attorney naming his step-daughter as his agent). She decided to file a guardianship proceeding to seek information and decision-making authority over her father.
But where to file? Which state had jurisdiction over an adult guardianship proceeding involving Mr. Brown? Georgia, where he had lived for decades, or North Carolina, where he had moved recently?
The Georgia guardianship proceeding
Mr. Brown’s daughter filed her petition in the Georgia courts, alleging that her father lacked capacity to make his own decisions. In two separate Georgia courts, the judges ruled that Georgia was Mr. Brown’s “home state.” That would ordinarily mean that the Georgia court system would be the proper place to litigate the guardianship proceeding.
But the second Georgia trial judge dismissed the daughter’s petition. While Georgia was Mr. Brown’s home state, Uniform Act allows a home-state court to decline to accept jurisdiction. In making that decision, the court is instructed to consider nine factors, which the Georgia law lists as:
- Any expressed preference of the respondent;
- Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;
- The length of time the respondent was physically present in or was a legal resident of this or another state;
- The distance of the respondent from the court in each state;
- The financial circumstances of the respondent’s estate;
- The nature and location of the evidence;
- The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
- The familiarity of the court of each state with the facts and issues in the proceeding; and
- If an appointment were made, the court’s ability to monitor the conduct of the guardian or conservator.
After reciting those factors, the trial judge dismissed the guardianship proceeding on Mr. Brown. He ordered the parties to file in North Carolina, instead.
Georgia’s Court of Appeals ruling
Last week, the Georgia Court of Appeals ordered the trial judge to take another look. It might be that North Carolina courts would make more sense, but the trial judge had not spelled out which of the factors applied and how they should be weighted.
It might be true, for instance, that North Carolina courts make more practical sense. After all, Mr. Brown and his wife and step-daughter are all in North Carolina now. In fact, Mr. Brown’s daughter has moved to the state to be closer to her father — so all the litigants would be there.
But if the court decides that Mr. Brown should be returned to his home state, or his estate should be more closely monitored, it might make more sense to have the guardianship proceeding in Georgia. The other items on the statutory list need to be evaluated, as well. In short, the trial judge was ordered to reconsider his ruling. Steen-Jorgensen v. Huff, October 30, 2019.
Two interesting footnotes
As is so often the case in adult guardianship and conservatorship proceedings, there is more to the story. At least two items caught our attention in reviewing the court ruling:
- Apparently, Mr. Brown’s step-daughter has already filed a North Carolina guardianship proceeding. It is unclear what will happen if the Georgia court decides to take up Mr. Brown’s guardianship proceeding after all. The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act was intended help prevent dueling state guardianship proceedings. Obviously, of both Georgia and North Carolina courts assert jurisdiction over the guardianship, that purpose will be frustrated.
- In a footnote, the Georgia Court of Appeals refers obliquely to what just might be the real issue. Apparently, Mr. Brown’s savings and income are being used to pay for both his and his wife’s care. His wife’s separate funds (including her pension benefits), meanwhile, are going into her personal account and are not being used for her (or Mr. Brown’s) care.