This paper addresses questions about the validity of a guardianship order from another jurisdiction. It is not unusual for people with disabilities who have guardians to be sent to another state to obtain specialized services.
Prepared for NAPAS by
Center for Public Representation
In our mobile society, P&As may increasingly be faced with questions about the validityof a guardianship order from another jurisdiction. It is not unusual for people with disabilities who have guardians to be sent to another state to obtain specialized services. A program in New Hampshire, for example, provides residential services to individuals with head injuries from a score of states. Long term care facilities and residential schools in Massachusetts serve many people who have guardians appointed by New York courts. Likewise, individuals who are discharged from institutions in one part of a state (where a guardian was appointed), may move to community living situations in another. People with disabilities may also choose to relocate, with or without their guardians' permission.1 Some wards may live in one state but have property in another.2
For people who move from state to state, the issue is one of conflicts of state laws. Article IV, § 1 of the United States Constitution requires courts in each state to accord “full faith and credit” to judgements of courts in other states. However, that requirement is not absolute. A court, for example, need not give full faith and credit to a judgment that was rendered by a court without jurisdiction. Underwriters Nat'l Assurance Co. v. North Carolina Life & Accident & Health Ins. Guar. Assoc., 445 U.S. 691 (1982). Some courts, citing to the “protective” nature of guardianship, have refused to give full faith and credit to foreign decrees if the “best interests” of the ward who is present in the state require the state to intervene. See, Vicki Gottlich, Finders, Keepers, Losers, Weepers: Conflict of Laws in Adult Guardianship Cases, 23 ClearinghouseReview 1415 (1990).
Generally, jurisdiction to appoint a guardian rests with the state in which the person is domiciled or is present. The Restatement (Second) of Conflicts of Laws recognized those two criteria (domicile and presence) to ensure that the states will be able to protect vulnerable people within their borders. Restatement (Second) of Conflicts of Laws § 79 (1971)(applying same rule to children and adults). Consequently, a Kansas court refused to give full faith and credit to a Nebraska guardianship decree which was entered when the ward was domiciled in Kansas. Morrissey v. Rodgers, 21 P.2d 359 (1993). A Maryland Court refused to credit an order of a Florida court appointing the newly Florida-domiciled wife of a Maryland resident as his guardian, even though the wife had submitted to the jurisdiction of the Florida court at a time she was his guardian pursuant to a Maryland order. The wife could not place her husband’s person under the jurisdiction of another state while he remained in Maryland. Mack v. Mack, 618 A.2d 744 (Md. 1993).3
Likewise, the Supreme Judicial Court of Maine exercised its jurisdiction over a Maine resident with a Massachusetts guardian appointed by a Massachusetts Court. The Court refused to appoint a temporary guardian, however, finding that the petitioner's allegation that the ward had been given unauthorized medication was insufficient to establish the extremely serious emergency that would be necessary for the Maine Court to act to protect the ward. Guardianship of Winston, 607 A.2d 907 (Maine 1992).
However, in a contrary finding, Florida courts were held to retain jurisdiction of a ward, even though the ward was present in Massachusetts. A Massachusetts citizen removed her mother, who had a corporate guardian appointed by a Florida court, from a Florida nursing home to Massachusetts without the authority of the guardian or the Florida court. The Massachusetts Appeals Court gave full faith and credit to the Florida decree. Guardianship of Enos, 670 N.E.2d 967 (Mass. App. Ct 1966). The Appeals Court noted that “courts have declined to give another jurisdiction's valid guardianship order full faith and credit only when the best interest of the ward required otherwise.” The Court noted that the daughter had shown no reason not to accord full faith and credit, that the Florida venue was more convenient to most of the parties, that the daughter had already appeared there to contest the appointment of the corporate guardian (indeed the daughter's motion to remove her mother to Massachusetts was pending there when she went to the nursing home, took her mother and brought her to Massachusetts), and that the Florida court was “fully capable of deciding” where the mother's well-being would be best served.
For the most part, when a ward moves from one place within a state to another, the guardianship venue moves with her. Most courts cite to the ability of the closest court to provide whatever protection the ward may need. See, In re Miller, 620 P.2d 800, 803 (Kan. 1980)(citingRestatement). Cf, Smith v. Young, 369 S.E.2d 798 (Ga. 1988)(jurisdiction is where the person is domiciled; however, a person who lacks capacity to change her domicile, remains a domiciliary ofthe county where she was initially domiciled, regardless of whether she has moved).
Therefore, when a ward moves from one state to another, the receiving state may, but need not, give full faith and credit to an existing guardianship. Persons under guardianship may find their rights restricted by these general rules. There may be confusion about who is the guardian, what authority the guardian has, and where it can be exercised. P&A attorneys and staff should check local case law and statutes to determine just how such questions may be resolved in their states.
Footnote 1: The authority of a guardian to determine the residence of a ward is beyond the scope of this Q & A. For an interesting discussion of the issue see In the Matter of M.R., 628 A.2d 1274 (N.J. 1994)(vacating a trial court order placing adult ward with her guardian mother when ward expressed a preference to live with her father).
Footnote 2: The rules about a guardian's authority to control a ward's property in another state are also beyond the scope of this short paper. Because in most cases guardians do not have authorityover property in other states, Hoyt v. Sprague, 103 U.S. 613 (1881), a ward may have different guardians in different states, a situation which is confusing at best.
Footnote 3: The Restatement also added a third jurisdictional basis _ placing jurisdiction in a state in which the person is neither domiciled nor present, if two or more persons who are personally subject to the jurisdiction of the state and are competing for custody. This third jurisdictional prerequisite, if adopted by any state, could be problematic for the putative ward, since it would allow, for example, two family members in one state, each seeking guardianship of a third party residing in another state, to invoke the jurisdiction of a state in which the allegedly incompetent person is neither present nor domiciled.