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New national act would address adult guardianship matters

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Lawyers practicing in family, elder, and probate law know the scenario well. Grandma lives in Florida where she can paint outside year-round, but three months ago she decided to temporarily move to Indiana to be near her kids. Soon after moving to the Hoosier state, she becomes seriously ill and family members in Indiana petition for guardianship.

Currently, Indiana law gives the courts in this state jurisdiction because she’s physically residing here despite possibly retaining a permanent home or even already-ongoing guardianship proceedings in her home state of Florida.

New law changes are on the horizon, taking away the Hoosier courts’ immediate jurisdiction in order to create more uniform guardianship laws throughout the country and reduce conflicts between states. If that happens, a trend that some family and elder-care advocates call “granny-snatching” could be addressed by the new laws. About 20 states have adopted the uniform changes, and Indiana could take action soon.
 

slater-george-mug Slater

“We have good laws here in Indiana, but we could be doing better,” said Lake Superior Judge Diane Kavadias Schneider, who says she’s been focused on this issue for the better part of a decade. “We’re starting to see these kinds of jurisdictional guardianship cases creep in the courts more, and the boomers will create a wave of this. People are aging and mobile and it’s becoming more common.”

An interim legislative committee on Oct. 13 drafted a proposed statute and is recommending that the Indiana General Assembly adopt the changes during its next session. The National Conference of Commissioners on Uniform State Laws approved and recommended the changes nationally in 2007, revising for the first time in a decade the comprehensive guardianship and protective proceedings statutes in what’s known as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). The act addresses many problems relating to multiple jurisdictions, transfers, and out-of-state recognition of guardianship that are becoming more prevalent as society gets older and becomes more mobile.

Most states historically have had their own “kingdoms,” where a guardian is appointed by a court in the state where the person requiring guardianship is domiciled or is physically present. But when those proceedings are contested, the court challenges between states become more complicated as attorneys must navigate the varying laws.

Carmel attorney George Slater, who sits on the Indiana State Bar Association’s probate review committee and researched this law earlier in the year, said that Indiana courts don’t fully recognize and credit guardianship decisions from other states.

“The minute they hit the state lines now, grandma is in our jurisdiction,” the elder law attorney says. “We’re such a mobile society, though, and we have to move beyond thinking about our borders to determine jurisdiction. This law says courts in different states need to cooperate more.”

Under the proposed act, a court would have jurisdiction over an adult guardianship matter if the court is in that person’s “home state.” To be a home state, the first test is whether the incapacitated person was physically present in the state for at least six months prior to the filing. Courts can also consider whether the state is a “significant connection state,” or a place in which that respondent has a significant connection other than physical presence and if evidence exists to that connection – such as a grandparent moving all of his or her property, selling other property, and even registering to vote there.

If another state has already initiated guardianship proceedings, then the Indiana court would have to check and see if that court or parties would contest guardianship in this state. Emergency petitions can also be used for temporary guardians, with the temporary period being increased from the current 60 days to 90 days required for notice. The Indiana court would have to dismiss the temporary status if the other out-of-state court requests it, according to the new act.

Each jurisdiction where guardianship is being examined would have to have the UAGPPJA in place. The Alzheimer’s Association, Indiana Judges Association, Indiana Adult Guardianship Services Project, National College of Probate Judges, and the American Bar Association have all signed on in support of the changes.

Most of the feedback so far is positive, according to Slater and Judge Schneider. Some of the concerns raised have focused on the six-month residential requirement and taking away some of the state’s individual jurisdiction, they said.

“This moves us out of our own kingdom or fiefdom into a cooperative national look at guardianships,” Slater said.

Advocates for the new laws say that passing it would prevent the practice of “granny-snatching,” which they have witnessed more frequently in recent years and will likely see more of in the future. One famous case raised this issue, when multi-millionaire Lillian Glasser – a longtime New Jersey resident – visited her daughter in Texas and that child petitioned and obtained guardianship through a Texas court, rather than her home state of New Jersey.

But the issue is more than those trying to use the courts in a deceptive fashion, Indiana attorneys say. Judge Schneider says that her court is two blocks from the Illinois state line, and a hospital on the border often results in people crossing the state line trying to find family members and get residency issues sorted out.

The judge sees those types of cases that are basically dueling guardianships – one case involves a husband receiving guardianship over his second wife with dementia, while the woman still has all of her property here in Indiana and the adult kids don’t want her going to the other state. But the current laws tie the court’s hands and cooperation between the two jurisdictions isn’t required.

“It’s not like we can’t resolve them now, but this would make things easier,” the judge said.

Carmel family law attorney Rebecca Geyer said many people try to move but don’t realize they have to first get court authority. She has a case in California now where the wards and guardian were moving between states and ran into these jurisdictional hurdles.

“This is a great idea and should be considered,” Geyer said. “I’m not sure if it makes Indiana more cutting edge because many are already doing this, but it would certainly make dealing with these issues a lot easier. Right now, it can be a nightmare. You might still have to retain counsel in another jurisdiction, but at least you’d have a starting point to know how jurisdiction applies.”•

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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