BY ANTHONY J. ENEA
On April 21, the Uniform Guardianship Protective Proceedings Jurisdiction Act (UAGPPJA) will go into effect as Article 83 of Mental Hygiene Law of the state of New York. Signed by Gov. Andrew Cuomo last October, the law will fill a significant gap relevant to jurisdictional issues between states in guardianship proceeds and help combat the elder abuse phenomenon commonly referred to as “granny snatching.”
“Granny snatching” typically occurs when, during a familial dispute, a senior suffering from dementia or another incapacity is moved from his or her home by a child or other family member to another state. Once this happened, the senior”™s legal guardian was no longer legally recognized. By adopting the UAGPPJA, New York will now recognize adult guardianship orders from 37 other states, the District of Columbia and Puerto Rico, with the jurisdictions being required to recognize a guardianship order from the state of New York.
Prior to enactment of the law, if a guardian appointed in another state wished to have their ward recognized in New York, he or she would need to commence a new action in New York to re-establish incapacity and the need for a guardian. Similarly, courts, care facilities and financial institutions in other states would routinely disregard a guardianship or protective order from the courts in New York.
In a society as mobile as ours, this lack of uniformity resulted in the unnecessary and time-consuming duplication of legal proceedings and a burden upon the courts. Most importantly, because New York had not adopted the UAGPPJA, “granny snatching” became more prevalent.
Although New York”™s adoption of the UAGPPJA does not change the state”™s substantive rules regarding guardianship proceedings, it amends the Mental Hygiene Law and the Surrogate”™s Court Procedure Act in such a way as to create uniform procedures for guardianships and protective proceedings. This will help significantly ease coordination with the courts of other states and provide for simpler procedures for those needing the protection of a guardianship order across state lines.
The UAGPPJA essentially creates a mechanism for resolving multi-jurisdictional disputes by helping accomplish the following three goals:
”¢Â Identifying one singular state court to adjudicate first-time guardianship petitions;
”¢Â Establishing a system of transferring existing guardianship appointments from one state to the other; and
”¢Â Establishing a system for recognizing and enforcing guardianship orders of one state in another.
An integral legal concept in the UAGPPJA is the preservation of the ward”™s “home state” jurisdiction irrespective of where the individual is physically located. In effect, a state is required to recognize the jurisdiction of the individual”™s home state ”“ where he or she was physically present for at least six consecutive months immediately before the filing of the petition ”“ and to cooperate with the home state as to a variety of issues.
There are limited circumstances where guardianship orders can be entered by another state. The UAGPPJA defines a “significant connection state” as a state other than the home state where the allegedly incapacitated person has a significant connection other than mere physical presence (factors include voter registration, location of property, tax return filings, drivers license and social relations). Clearly, this is a definition that gives recognition to the phenomenon known as the “snow bird.”
Some of the other noteworthy provisions of the newly enacted Article 83 of the Mental Hygiene Law are:
”¢Â New York courts are able to communicate with a court in another jurisdiction, and the court may allow parties to participate in the communication for a proceeding under Article 83;
”¢Â Cooperation between courts is encouraged. For example, a court in New York can request that a court in another jurisdiction hold an evidentiary hearing, order a person in that state to produce evidence or give testimony, and order that an assessment or evaluation of the allegedly incapacitated person be performed;
”¢Â Article 83 will be the exclusive jurisdictional basis for a New York court to appoint a guardian or issue a protective order; and
”¢Â Except as provided in Article 83.19, a court that has appointed a guardian of the person or issued a protective order consistent with this article has exclusive and continuing jurisdiction over the proceedings until it is terminated by the court or the appointment or order expires by its own terms.
New York”™s enactment of the UAGPPJA will create a predictable and expeditious process for the initial appointment of guardians in another state, the transfers of existing guardianships to other states, and the recognition of orders from other states. Additionally, it is hoped that “granny snatching” and elder abuse will be significantly reduced as a result of its enactment. While only time will tell how helpful the UAGPPJA will be, its enactment in New York is clearly an important step in the right direction.
Anthony J. Enea is a managing member of Enea, Scanlan & Sirignano L.L.P. with offices in White Plains and Somers. He is the immediate past chair of the New York State Bar Association”™s Elder Law Section and was named Westchester County”™s leading elder care attorney at the 2013 Above the Bar Awards. He can be reached at 914-948-1500 or a.enea@esslawfirm.com.
