Uniform Adult Guardianship Act Awaits Governor’s Signature

Ronald A. Fatoullah, Esq. and Yan Lian Kuang-Maoga
September 17, 2013 — 1,933 views  
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Ronald Fatoullah has been instrumental in bringing the enactment of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the “Act”) within reach in the State of New York. Having experienced a multi-state guardianship issue himself, he made it a personal goal several years ago to have New York sign onto the Act. The issue was presented to several legislators, and although they were all sympathetic, the legislators wanted the backing of the New York State Bar Association. After years of work, the NYSBA finally backed the Act last year.

In January, 2013, a bill seeking the enactment of the Act was introduced in New York. It passed the New York State Assembly on April 22, 2013 and the New York State Senate on April 30, 2013, both unanimously. We now are waiting for the Governor to sign the Act into law.

The Act provides a set of uniform rules that address jurisdiction and related issues in adult guardianship cases when multiple states are involved. The Act has widespread support from organizations such as the National Academy of Elder Law Attorneys, the National Guardianship Foundation, the Alzheimer’s Association, the Conference of Chief Justices, the Conference of State Court Administrators, the Council of State Governments, and the American Bar Association.

With an increasingly mobile society, multi-state guardianship issues are not uncommon. These issues arise among snowbirds who may be residents of New York but spend their winters in Florida, caregivers who may be moving sick family members in or out of New York, individuals who may be utilizing out of state health care providers, individuals who may wander in or out of New York, and elderly persons who are victims of “granny snatching” into or outside of New York. Granny snatching refers to the unauthorized removal or retention of a senior.

Like most states, New York has jurisdiction to appoint a guardian of an individual who is a resident of New York or who is simply physically present in the state. Extensive and costly litigation over jurisdiction may result where the domicile of the “alleged incapacitated person” (“AIP”) is difficult to determine. In addition, jurisdiction based merely on the physical presence of an AIP encourages granny snatching. For example, if a niece snatches her elderly aunt and takes her out of New York under cover of night into her home state of New Jersey, then a New Jersey court would have jurisdiction over the aunt. This would be true even if there was an existing guardian appointed in New York.

Further, without the Act, transferring an existing guardianship matter from one state to another typically is not available. As is the case in many states, New York currently requires that a new petition for guardianship be commenced in New York, even when one already exists in another state. This requirement results in added expenses and is often quite painful for families, especially when the guardianship matter is contested. These extra steps may discourage caregivers from moving an incapacitated individual into a better living arrangement, such as a locale that is closer to a caregiver. The process also takes time and attention away from the caregiver’s primary task of caring for the incapacitated person. 

The objectives of the Act are as follows:

1)  To identify one singular state court to adjudicate first time guardianship petitions;

2)  To establish a system of transferring existing guardianship appointments from one state to another; and

3)   To establish a system of recognizing and enforcing guardianship orders of one state in another state.

The bill seeking enactment of the Act is an important one, and it is our hope that it will become law in the very near future.

Ronald A. Fatoullah, Esq. and Yan Lian Kuang-Maoga

Ronald Fatoullah & Associates

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that exclusively concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. This article was written with the assistance of Yan Lian Kuang-Maoga, an elder law attorney with the firm. Ronald Fatoullah & Associates can be reached by calling (718) 261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.