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"We have such a fluid of society with people moving back and forth," said Oregan lawyer Frank A. Thomas III, who does estate planning and guardianship work.
When an aging parent is no longer able to care for herself and refuses to leave her community home to move hear an adult child in another state, the child still has to find ways to solve care-giving problems. Solutions include appointment of a guardian.
Virginia has a new statute that should smooth the way for a possible guardianship solution by providing procedures to resolve disputes over which state has jurisdiction to act in matters of guardianship and conservatorship.
Effective July 1, Virginia's new Uniform Adult Guardianship and Protective Proceedings Act articulates rules for determining which jurisdiction has primary "home state" jurisdiction, and allows for a transfer of guardianship from one state to another. When there are players and property in several different states, coordinating what happens to protect a person and her assets has been difficult, according to Thomas.
"This has been a huge issue in the northern part of the state," he said, especially in real estate matters. Lawyers have just had to "muddle through."
What authority does one state's court have to act on real estate in another state? Even when there was a guardian appointed outside Virginia, "some very cautious people thought you had to start all over again and appoint a Virginia conservator" when dealing with Virginia real estate, Thomas said.
The benefit of the new statute is to provide a "consistent, coherent set of rules," he said.
The Uniform Act is intended to provide clear jurisdictional rules for foreign guardians acting in Virginia and for Virginia guardians attempting to qualify and act for non-residents in Virginia.
In the past, Virginia courts generally have found an action by a foreign guardian in Virginia courts is a nullity, according to a Boyd-Graves study committee report.
Roanoke estate-planning lawyer Lee J. Osborne served on the study committee and also worked on the matter through the Virginia State Bar.
"There's value in trying to have some rules that will be broadly adopted," Osborne said. The rules will cover situations in which a guardian is appointed in Virginia, for someone who then moves to another state, or conversely, when a guardian is appointed outside Virginia, for someone who later moves into Virginia.
Virginia's basic statutory framework for appointment of guardians, who look after the person, or conservators, who focus more on an incapacitated person's property, remains the same. But for appointment of a guardian in the first instance, parties inside Virginia may need to look to the new uniform statute, for instance, if there is some question about where the person has resided in recent months, according to Osborne.
"Typically these are the family members involved or person's who have interest in the welfare" of the incapacitated party. "Sometimes it's social welfare agencies," Osborne said.
"Sometimes a parent moves in with the kids," doesn't like living with the kids, and moves out, Thomas said.
"There's a problem, quite frankly, with kids kidnapping the parents. Parents get caught up in the power play by the kids. The out-of-state kid thinks the in-state kid is treating mama badly. The out-of-state kid packs up mama and moves her out and probably starts a guardianship proceeding in another state," claiming to be the one on the white horse, Thomas said.
Previously, jurisdictional conflicts generated extra costs and delays that affected the statutes of limitations. Procedures involving multiple jurisdictions could be cumbersome depending on the state, or even the foreign country, that appointed a guardian.
The new Uniform Acts set out procedures that allow Virginia courts to cooperate with the courts of other states in guardianship proceedings, which should save parties time and money.
Under the Act, a "home state" jurisdiction is where the person who allegedly is incapacitated was physically present for at least six months prior to the filing of a petition for a protective order or appointment of a guardian. The statute also outlines criteria for determining a back-up "significant connection state" for designation of another jurisdiction authorized to act.
In a guardianship proceeding in Virginia, the Virginia court may request the appropriate court of another state to hold an evidentiary hearing, order production of evidence or testimony, order an evaluation or assessment of the respondent or an investigation of any person involved in a proceeding.
A Virginia court also may work with a court in another state court to issue an order that authorizes release of medical, financial, criminal or other relevant information, including protected health information.
The statute allows for testimony taken in another state to be used in a Virginia court, including a deposition or testimony given by telephone or audiovisual means. Twenty-three states have adopted the Uniform Guardianship Act, according to the Uniform Law Commission.
By Deborah Elkins Virginia Lawyers Weekly, pg. 1 & 16
If you or someone you know is dealing with a guardianship issue, please contact Hampton Roads Family Lawyer Attorney Michael S. Weisberg.
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