Elder law attorneys may specialize in estate planning, incapacity planning, and end-of-life care for seniors.…
A guardianship proceeding can be very expensive, very time consuming, and very emotionally and physically draining—for the person who needs a guardian and the family members as well.
Why is this? Take a look at the reasons below:
- You have to file a petition with the court.
- You have to serve notice of service to family members and the individual who is alleged to be incapacitated.
- You have to go through a court hearing to determine if the alleged incapacitated person is actually incapacitated.
- You have to determine who is going to be the guardian.
Let’s say that, for example, an appointed guardian lives in New Jersey. There may have been some changes in either the guardian or the incapacitated person’s life, and now there is a need to move the incapacitated person to New York. The US Constitution does not grant full faith and credit to guardianships from different states. So, without any kind of statute, the whole guardianship process would have to be started over again.
The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) streamlines the procedure of transferring guardianships from one state to another. However, there are a number of states that have not passed this Act: Florida, Texas, Kansas, Wisconsin, and Michigan. To transfer guardianship to one of those five states, the guardianship process must be started from scratch.
But, if you’re lucky enough to live in, or wish to transfer to states that have the UAGPPJA, transferring the guardianship is a matter of filing paperwork with the transferring-from state.
For example, you have a guardianship in New Jersey and want to transfer it to New York:
- You would file a petition in New Jersey asking the court to grant a provisional order that would allow you to seek an application in New York to move the guardianship.
- With that provisional order, you then petition the New York court to accept the provisional order, to review the New Jersey file for guardianship, and to grant an order accepting the provisional order.
- You then take the order from New York back to New Jersey showing that New York has accepted it, and ask to be discharged from the guardianship. This would allow the move to New York to be completed.
- The court of New Jersey grants an order discharging the guardianship in New Jersey.
- You provide the New Jersey order to New York and say, “I’ve been discharged from New Jersey. I’m all yours, New York.”
- The State of New York will accept the order and you now have a guardianship in New York, and no longer in New Jersey.
Guardianships can be incredibly difficult and time-consuming. You don’t want to have to do them more than once. If both states involved in the transfer have the UAGPPJA, the streamlined procedure it affords should be less costly, less time consuming, and less grueling than starting the process anew.
In New York State, the Act has only been in effect since 2013, therefore, there are very few precedents. Speak with an experienced attorney who has handled a number of these cases before you decide on whom to retain, because these waters are largely uncharted.
Please contact us with questions or comments.