JULY 25, 2016 VOLUME 23 NUMBER 28
Before any guardianship or conservatorship action can be filed in a local court, the court must have jurisdiction over the person subjected to the proceeding. For many decades that had meant (more or less) that the person must be physically present in the state, and not much more. That began to change in 2007, with the proposal, and quick adoption in most states, of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA).
Arizona, for instance, adopted the UAGPPJA in 2010. It has now been adopted by 45 states (plus the District of Columbia and Puerto Rico); the holdout states are Florida, Kansas, Michigan, Texas and Wisconsin. The law is intended to address, among other things, the problem of interstate disputes among family members — and especially to prevent warring family members from gaining tactical advantage by moving incapacitated family members involuntarily to a new state before filing a court proceeding. It received much of its impetus from the celebrated case of Lillian Glasser, whose family and friends fought over where to file her guardianship proceeding. In that regard, it is mildly ironic that one of the remaining states not adopting the UAGPPJA is Texas, where half of Ms. Glasser’s disputed guardianship case played out. Ms. Glasser herself, incidentally, died in her Florida home in 2011 — in yet another one of the few states not yet adopting the UAGPPJA.
The UAGPPJA actually addresses other, more mundane issues, as well. It establishes a mechanism for transferring guardianship proceedings to a new state when the subject of the proceedings moves. It also makes it easier for guardians (and conservators) to establish their authority in states other than the one in which the proceedings are filed. All that should make management of guardianship easier — even across state lines.
Despite its adoption in almost every state, there is precious little case law interpreting the UAGPPJA. A recent case out of Maine adds to the interpretation of the law, and helps reinforce the principles that gave rise to its adoption.
What should happen, then, when a person who needs a guardian travels across state lines, and comes to the attention of the court in a state where they do not live? If they got to the new state by the acts of a family member seeking advantage, it seems easy to answer that the family member’s misbehavior should not be rewarded. But what if there was no misbehavior — and, indeed, no family member or friend involved?
That is the dilemma that faced the Maine probate court in the case of Henry Smith (not his real name). Henry had lived for years in California. After he had a stroke in 2012, he was partially paralyzed. In an apparent attempt to get back to his original hometown in Canada, he sold his house in California and traveled across the country. He spent time in Washington State, Arizona, New Mexico and Georgia before arriving in Maine one day in 2013.
Henry checked into a hotel in Portland, Maine, and asked the staff to help him with transfers from his wheelchair to bed and to the toilet. After they worked with him that first night, the hotel staff became concerned about his ability to take care of himself, and called the police.
Portland police visited Henry, decided he was unable to make his own decisions, and took him to the psychiatric unit at a local hospital. From there, Henry was involuntarily committed for mental health treatment and then released to an assisted living facility — but not before a guardianship proceeding was initiated.
Because Henry had no family, friends or even acquaintances in Maine, the probate court appointed the public guardian to manage Henry’s placement and care. The court did give Henry some autonomy to make at least some of his personal decisions, but the public guardian was ultimately in charge of where he would live, whether he could return to either Canada or California, and what medical care he would receive.
Henry appealed his guardianship, and the Maine Supreme Court agreed with his objections. The UAGPPJA, ruled the Court, allowed an emergency guardianship order in Maine, but only for a six-month period. Since the guardianship had by that time already been in place for almost two years, the UAGPPJA’s jurisdictional limitations had already been violated. The Court did give the public guardian forty-five more days to figure out where Henry should be cared for. Guardianship of Sanders, July 7, 2016.
Does that mean that Henry must be released by Maine to continue his travels toward Canada, regardless of how ill-advised that plan might be? Not necessarily. The UAGPPJA requires that a person’s “home state” should have priority to act — and that means that California (his original home) should be given the chance to take responsibility for Henry’s decision-making. But if California declines or refuses to act, Maine courts may once again have the authority to continue the guardianship.
By our count, this is just the third appellate decision relying on the UAGPPJA (the other two were in Arkansas in 2009, and Tennessee in 2013). It seems that the mere existence of the law has significantly reduced the abuses that seemed so widespread when we first wrote about Lillian Glasser’s case back in 2007.
