INTERSTATE GUARDIANSHIP ISSUES UNDER THE “NEW” NEW JERSEY UNIFORM ADULT

GUARDIANSHIP AND PROTECTIVE ORDERS ACT

Hanlon Niemann, PC3499 Route 9 North, Suite 1F

Freehold, NJ 07728(732) 863-9900

fniemann@hnlawfirm.com www.hnlawfirm.com

Elder Law, Estate Planning, Asset Protection and Veterans Benefits Attorneys

Legal Wit

What’s the difference between a good lawyer and a great lawyer?  A good lawyer knows the law. A great lawyer knows the judge.

A new client had just come in to see a famous lawyer.  “Can you tell me how much you charge?”, said the client.  “Of course”, the lawyer replied, “I charge $200 to answer three questions!”  “Well that’s a bit steep, isn’t it?”  “Yes it is”, said the lawyer, “And what’s your third question?”

What’s wrong with lawyer jokes?  Lawyers don’t think they’re funny, and nobody else thinks they’re jokes.

Introduction In our increasingly mobile society, it is more

common for family members to move relatives with diminished capacity across state lines. This is because while some states, like NJ, base guardianship jurisdiction on domicile, others base jurisdiction on residence or physical presence in the state.

The Assertion of Jurisdiction by Two or More States

Sometimes (often), two or more states may claim personal jurisdiction over an (alleged) incapacitated person, especially when jurisdiction is based on criteria other than domicile (permanent residence – “parent napping”). In determining the appropriate forum, courts without the UAGPPJA may consider factors such as immediate physical presence in the state, best interests of the alleged incapacitated person, the jurisdiction of the state where there are greater ties, the location of witnesses, etc.

UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT (UAGPPJA)

The UAGPPJA sets forth a standard for determining the “home state” of an alleged incapacitated person. “Home state” is defined as the state in which an individual was physically present for at least six consecutive months immediately before the commencement of the court petition.

The UAGPPJA also sets forth procedures to deal with dueling proceedings in different jurisdictions (ie., New Jersey vs. Idaho) the appointment of emergency guardians, communications among the various courts and state guardianship transfers of persons. It also addresses recognition and enforcement of final and interlocutory orders in states that have adopted the UAGPPJA.

Determination of Jurisdiction

Under the new law, New Jersey has jurisdiction if: NJ is the respondent’s home state OR

On the date the petition is filed, NJ is a significant connection state AND

The respondent has no home state or a court in the home state has refused to exercise jurisdiction in favor of NJ; OR

The respondent has a home state, but there is no other petition pending in another jurisdiction AND before NJ acts:○ A petition is not filed in the home state;○ No objection to jurisdiction is filed; AND○ The court determines it is an appropriate forum.

Here are Definitions to Better Understand the Law

Home State: The state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for the appointment of a guardian or a protective order, or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition.

(continued)

Significant-connection state: a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available. N.J.S.A. 3B:12B-10 sets forth factors in determining a significant connection. They are:

a) The location of the respondent’s family and other persons required to be notified of the proceeding;

(continued)

Definitions… continued

b) The length of time the respondent at any time was physically present in the state and the duration of any absence.

c) The extent to which the respondent has ties to the state such as:

1. Voting registration

2. State or local tax return filing

3. Vehicle registration

4. Driver’s license

5. Social relationship

6. Receipt of services

Definitions… continued

Deciding Which State Has Jurisdiction NJ may decline to exercise jurisdiction at

any time if it determines that a court of another state is a more appropriate forum.

If NJ declines to exercise jurisdiction, it shall either dismiss or stay the proceeding and may impose any condition it deems proper, including the condition that a petition be filed promptly in another state.

How Will a New Jersey Court Determine Whether or Not to Decide the Case

Here’s How: The “Factors”

i. Any expressed preference of the respondent;

ii. 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;

iii. The length of time the respondent was physically present in or was a legal resident of this or another state;

iv. The distance of the respondent from the court of each state;

v. The financial circumstances of the respondent’s estate;

vi. The nature and location of the evidence;

vii. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present evidence;

viii. The familiarity of the court of each state with the facts and issues in the proceeding; and

ix. If an appointment were to be made, the court’s ability to monitor the conduct of the guardian or the conservator.

What About in an Emergency: What Happens to the Person?

Even when NJ lacks jurisdiction as set forth in the Act, it still has emergency jurisdiction to accomplish the following:

a) Appoint a guardian or issue a protective order in an emergency for a respondent who is physically in NJ;

b) Appoint a guardian of real or tangible personal property located in NJ for which respondent has an ownership interest;

c) Issue a protective order with respect to real or tangible personal property in NJ; or

Emergency Jurisdiction… continued

If an emergency application for a guardian or a protective order is brought in NJ and NJ is not the respondent’s home state, then the court shall dismiss the proceeding at the request of the court of the home state.

Dueling Guardianship Petitions in Different States

a) If NJ has jurisdiction as defined in the Act, then NJ may proceed unless a court of another state acquires jurisdiction under similar provisions before the appointment or issuance of an order.

b) If NJ does not have jurisdiction under the Act, then NJ is to stay the proceeding and communicate with the court of the other state. If the court in the other state has jurisdiction, NJ shall dismiss the petition unless the other state determines that NJ is a more appropriate forum.

Communication Between State Courts When a Case Is or May Be Pending in Both Courts

The Act specifically permits NJ courts to communicate with another state regarding the proceeding.

a) The court may permit all parties in the New Jersey case to participate in these discussions accordance with the Rules of Court.

b) There is to be a record of the communication unless it concerns schedules, calendars, court records and other administrative matters.

Transferring Guardianships or Conservatorships to (1) Another State or (1) to New Jersey

(1) To Another State

a. Notice of a petition to transfer guardianship to another state must be given to all those entitled to notice when originally appointing a guardian or conservator;

b. A hearing in open court is to be held regarding the transfer petition;

(cont’d)

The Court is to issue an order “provisionally” granting the transfer and directing the guardian/conservator to petition for guardianship/conservatorship in the state if the court is satisfied that the guardianship will be accepted and the court finds that:

i. The incapacitated person is physically present in or is reasonably expected to move permanently to the other state

(cont’d)

ii. No objection made to transfer or that the transfer would not be contrary to the best interests and welfare of the incapacitated person

iii. Guardianship of the person- the “plan of care” and available services for the incapacitated person in the other state are reasonable and sufficient

iv. Adequate protective arrangements are made for management of the property of the ward

(cont’d) (2) From another state

a. The Guardian/conservator files a petition in NJ to accept the guardianship/conservatorship from elsewhere, which includes a certified copy of the other state’s provision order of transfer;

b. Legal notice is given as commensurate with filing an original guardianship/conservatorship action in this state;

c. A hearing can be held regarding the transfer petition if requested or ordered by court;

(cont’d)

d. The New Jersey court enters its final order upon receipt of a final order from the other state transferring the proceeding;

e. Upon an application by a party or the court’s own motion, the court may modify the foreign state order to conform to NJ law;

f. The NJ court is to recognize the other state’s guardianship/conservatorship order, including the determination of incapacity and the appointment of a guardian/conservator, but… (what if capacity is challenged?);

(cont’d)

g. A denial by NJ of an application to accept transfer does not affect the ability of an individual to seek appointment of a guardian under N.J.S.A. 3B:12-25 or conservator under N.J.S.A. 3B:13A-1 et. seq.

(cont’d) Registration of guardianship

/conservatorship orders from other states:

a. Guardian/conservator may register an order with the Surrogate in an appropriate NJ county if:

i. There is no application for a guardian/conservator pending in NJ

(cont’d)

ii. Notice is given to the appointing court of intent to register

b. Effect of registrationi. Guardian/conservator may exercise in NJ

all powers authorized in the order of appointment except as prohibited in NJ law

ii. NJ shall recognize and enforce the registered order, but not modify it unless the procedures described above are followed

International Jurisdictional Issues The dispute over vulnerable adults may cross

international as well as state borders. The Hague Convention on the International Protection of Adults (“Convention”) addresses international claims of authority over mentally incapacitated adults.

Section 103 of the UAGPPJA contains a provision allowing courts to treat a foreign country as if it were a state for the purpose of applying certain articles of the uniform act. New Jersey’s version of the act has adopted this section clarifying that it does not apply to the sections pertaining to registration. N.J.S.A. 3B:12B-4.

EFFECT OF THE NEW ACT

In the Matter of Lillian Glasser, Middlesex County

Facts: Daughter initiated a guardianship action of her 85 year old mother, Lillian Glasser, in TX. Mrs. Glasser lived nearly her entire life in NJ and owned a home there. She spent some of her winter months in a condominium in FL. Mrs. Glasser was physically present in TX at the time of the filing. A TX court appointed a temporary guardian and initially refused to dismiss for lack of jurisdiction after the NJ court asserted jurisdiction.

(cont’d)

Actual Result: NJ asserted primary jurisdiction and requested that TX transfer the proceedings to NJ. This was only after the expenditure of approximately $1.5 million in legal fees in TX.

Result under UAGPPJA: The TX court would have known that NJ was the home state and NJ could have easily and quickly asserted jurisdiction pursuant to the Act. The Act encourages the TX and NJ courts to communicate, which did occur in this case, but the clarity of the Act could have avoided parallel proceedings. Millions of dollars in legal fees could have been saved.

(cont’d)In the Matter of Floretta Sutton-Logan

Facts: Daughter filed guardianship action in NJ. Floretta Sutton-Logan’s second husband argued that VA had jurisdiction. They were married in 1996 and moved to VA in 2004 so the husband could assist a friend with a ministry. In 2005, they purchased a home in VA. Floretta obtained a VA driver’s license, registered to vote, opened bank accounts and paid taxes using her VA address. Floretta continued to return to NJ to visit family, consult doctors and manage rental properties. Floretta’s pension benefits and Social Security payments were direct deposited in a NJ bank account held jointly with her daughter. While in NJ in January 2007, Floretta executed a power of attorney and advance directive naming her daughter as agent. In May 2007, Floretta was diagnosed with cancer and remained in NJ for treatment. Floretta suffered a stroke in June 2007 and resides in a skilled nursing facility in NJ.

(cont’d) Actual Result: The Appellate Division

affirmed the trial court’s determination that Floretta’s domicile was NJ. The appellate court pointed to the fact Floretta maintained ties to NJ: real property, bank accounts, primary medical providers, and legal representation. When faced with a serious medical condition, Floretta obtained care in NJ, not VA.

(cont’d) Result under UAGPPJA: Whether NJ or VA was

the home state would have been the focus, instead of domicile. At the time of the filing of the NJ guardianship action, Floretta had been in NJ for 4 months. Thus, one could argue that VA was the home state. However, NJ is a significant-connection state. Thus, NJ could have jurisdiction if there were no pending petition in VA. However, given that the husband objected to jurisdiction; thus, VA had jurisdiction unless it declines to act in favor of NJ.

Fredrick P. Niemann, Esq.

New Jersey Guardianship Attorney

Hanlon Niemann P.C.3499 Route 9 North, Suite 1-F

Freehold, NJ 07728732-863-9900

fniemann@hnlawfirm.com www.newjerseyguardianshipattorney.com