Many clients have loved ones who will become or who are already vulnerable and need assistance with activities of daily living. Clients will often create Health Care Proxies or Durable Power of Attorneys to appoint trusted individuals or family members to make medical and financial decisions when those loved ones are no longer able to independently make such decisions.

Unfortunately, not all individuals appropriately plan for their incapacity and interested parties must apply through the probate court to obtain such authority.

• Guardianship is the process by which a court appoints a person to manage and make decisions concerning the health or well-being of an incapacitated person.
• Conservatorship is the process by which a court appoints a person to manage the financial affairs of an incapacitated person.

Jurisdiction

Before a court can consider a petition to appoint a guardian or conservator, the court must have jurisdiction over the matter. Although this question is often straightforward for some people since jurisdiction is primarily based on an individual’s residence, it can be a difficult question for some individuals to answer given ease of travel and having connections to more than one state.

Reasons for an individual having ties to more than one state may include traveling to a different state for:

• Secondary and higher education
• Commuting or relocating for work
• Visiting family, friends, children, or grandchildren for an extended period of time
• Having specific health care providers
• Owning and using a second home

Sometimes, disagreements can arise from multiple interested parties (i.e., children) living in different states, each having an interest in becoming a guardian or conservator of a loved one, and each believing that child’s home state is the most appropriate to act on a potential guardianship or conservatorship matter.

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

To help address jurisdictional questions between states, forty-seven (47) states have adopted their own version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (“UAGPPJA”).

Unless it is already clear, the UAGPPJA provides guidance for courts to determine an individual’s home state and therefore, which state has the best claim for jurisdiction.

Factors for determining an individual’s home state can include but are not limited to:

• How long the individual has been present in the state.
• The individual’s best interests, including
• Social connections
• Proximity to health care providers

If a court concludes it has jurisdiction, then that court has the authority to appoint a guardian and/or conservator.

Appropriately Planning for Incapacity

To avoid the costs, delays and potential conflicts associated with court processes to appoint guardianships and conservatorships, every adult should execute a Health Care

Proxy and Durable Power of Attorney. A Health Care Proxy allows another individual to make health care decisions if the principal is unable to make such decisions. A Durable Power of Attorney appoints a trusted individual to execute documents on the principal’s behalf and to manage the principal’s financial affairs.

If you or a loved one has questions about guardianship, conservatorship and incapacity, then please contact our experienced attorneys in either our Private Client Services practice or our Family Law attorneys. We are happy to answer any questions you have regarding guardianship and conservatorship.

Learn more about attorney David Grimm.

This article is not legal advice and should not be taken as such or relied upon as legal advice