Out Of State Guardianship Act Awaits Governor's Signature
NEW YORK, May 7, 2013 /PRNewswire/ -- Elder Law Attorney Ronald Fatoullah, principal attorney of Ronald Fatoullah & Associates, was honored at the annual meeting of the Elder Law Section of the New York State Bar Association in January, 2013 in recognition of his "advocacy, drafting and persistence in creating the legislative initiative for the New York State Uniform Adult Guardianship and Protective Proceedings Act."
Now, both the New York State Assembly and New York State Senate have passed the New York State Uniform Adult Guardianship and Protective Proceedings Act (the "Act" or "Uniform Act"). The bill now awaits Governor Cuomo's signature. When signed, New York will be the 37th state (plus Puerto Rico and the District of Columbia) to have adopted the Act.
With an increasingly mobile society, multi-state guardianship issues are not uncommon. These issues arise among snowbirds who may be residents of New York but spend their winters in Florida or another state, caregivers who may be moving sick family members in or out of New York, individuals who may be utilizing out of state health care providers, individuals who wander in or out of New York, and elderly persons who are victims of "granny snatching" into or out of New York State.
The Uniform Guardianship Act simplifies the law governing multi-state guardianship actions and will make it easier for individuals to act as guardians for their elderly parents and relatives, even if they live in states other than New York.
The Full Faith and Credit Clause of the U.S. Constitution requires that court orders in one state be honored in another state. But there are exceptions to the full faith and credit doctrine, and one unfortunate exception involves guardianship and protective proceedings. Oftentimes, guardianship or protective proceedings must be initiated in a second state because of the refusal of financial institutions, care facilities, and the courts to recognize a guardianship or protective order issued in another state.
Like most states, New York has jurisdiction to appoint a guardian of an individual who is a resident of New York or who is simply physically present in the state. Jurisdiction based merely on the physical presence of an incapacitated person in New York encourages the occurrence of "granny snatching," i.e., the unauthorized removal or retention of an elder person.
Consider the New York case, Matter of Verna HH., 756 N.Y.S.2d 300 (3rd Dept. 2003). In this matter, Verna the incapacitated person resided in Kentucky with respondent, one of her children, for about 10 years prior to the guardianship petition. The petitioner, another child, traveled to Kentucky and brought Verna to New York and thereafter petitioned for guardianship over Verna's person and property. The Court on appeal found that New York State had jurisdiction based on the mere physical presence of Verna in the state. Therefore in these cases, a guardianship action, often contested, would have to be brought in New York. And if the court did ultimately decide that the incapacitated person should return to the other state, then an entirely new, and often contested, guardianship action would have to be brought in that other state. This is extremely costly and a huge waste of judicial resources to litigate these cases twice. If the Uniform Act was in place in both states, New York would have ceded jurisdiction to Kentucky, the so-called "home state" under the Act. It is clear that once signed, the Act will undoubtedly save New York State a substantial amount of judicial resources.
We have more than 50 guardianship systems in the United States. The Act does not change a state's substantive rules regarding guardianship. The objectives of the Act are as follows:
- To identify one singular state court to adjudicate first time guardianship petitions;
- To establish a system of transferring existing guardianship appointments from one state to another; and
- To establish a system of recognizing and enforcing guardianship orders of one state in another.
The New York State Uniform Adult Guardianship and Protective Proceedings Act will:
- Reduce the incidents of granny snatching by eliminating the mere physical presence of an incapacitated individual as a basis of jurisdiction;
- Enable a court to decline to exercise jurisdiction where jurisdiction exists because of an unjustifiable conduct such as granny snatching;
- Require a court to consider elder abuse when making a determination of the issue of an appropriate forum;
- Require a court to consider its own ability to monitor the conduct of the guardian when making a determination of the issue of an appropriate forum; and
- Establish transfer procedures that could remove individuals from abusive situations.
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SOURCE Ronald Fatoullah & Associates