June 24, 2011
Indiana Enacts Uniform Adult Guardianship and Protective Proceedings Act
Indiana recently enacted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the "Act"). The Act is effective July 1, 2011, and is designed to eliminate multi-state jurisdictional issues and "Granny snatching" cases. The Act is located in Indiana Code 29-3.5.
Typically, the fact pattern arises when (1) an Indiana older adult resident visits a child in another state (Ohio) for vacation, or (2) a child comes to Indiana, grabs Mom and takes her to the home (Ohio) of the visiting children in a state other than Indiana. Frequently, the misconduct is designed to financially exploit the parent and deprive the Indiana courts of jurisdiction, as the parent's home state. Such actions by the child are intended to take the parent out of the reach of an Indiana guardianship. If the receiving state (Ohio) has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, attorneys can rely upon the new Indiana statute.
Also, adult guardianships have increasingly become more complex due to jurisdictional issues. For instance, imagine an elderly adult who owns property in more than one state or the circumstance where an incapacitated adult needs to be moved from one state to another for medical or financial reasons. Which state has jurisdiction? Judges, guardians and attorneys must address issues as to which state should have initial jurisdiction, how to transfer guardianship to another state and whether guardianship in one state will be recognized in another.
The Act provides a process for determining the state that has jurisdiction to appoint a guardian or conservator and procedures for transferring a guardianship to another state. The goals are to save time and cost while protecting incapacitated persons and their property from potential abuse. The Act designates the individual's home state as the state with primary jurisdiction, followed by a state where the individual has a "significant connection" based on factors such as the location of the individual's family, the length of time the individual has been present in the state and the location of the individual's property.
The Act also provides registration and enforcement of orders from other state and has several provisions that facilitate cooperation and communication with out-of-state courts in guardianship matters. To address emergency situations, the Act permits a court where an incapacitated person is physically present to take temporary protective actions, including the appointment of a guardian for property in the acting state. The Act also includes provisions allowing a court to decline to exercise, or limit its jurisdiction, where a person seeking to invoke jurisdiction has engaged in unjustifiable conduct.
Overall, the Act will likely reduce the costs and uncertainty involved with interstate conflicts in guardianship matters, remove the attractiveness of forum shopping that may be harmful to the incapacitated person and provide uniformity of the laws across the states that have adopted the Act.
Long term care facilities need to pay close attention to residents subject to guardianships and watch for residents with out-of-state guardianship orders.
If you have questions about this matter, please contact Todd J. Selby at (317) 977-1440, Sean Fahey at (317) 977-1472, Brian D. Jent at (317) 977-1402 or your regular Hall Render attorney.