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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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