Enacts the uniform guardianship and protective proceedings jurisdiction act

Summary of provisions

Section one adds a new Article 83 to the Mental Hygiene Law (MHL) to provide for the Uniform Guardianship and Protective Proceedings Jurisdiction Act. This Article provides a framework for how a court of this state may treat a foreign country for purposes of applying provisions of this Act. The Article section also provides a framework for communication concerning a guardianship proceeding between courts in different states, allows New York courts to requires certain action from courts in other states, and outlines procedures for cooperation between courts in different states. Further, the Article specifies acceptable methods for a state court to obtain testimony from a witness located in another.

Article 83 also provides factors that a court shall consider in determining whether a respondent has a significant connection with a particular state for purposes of establishing jurisdiction. Subject to §8l.l8 of the MHL, which pertains to foreign guardians for persons not present in the state, this Article shall be the exclusive jurisdictional basis for a court of this state to appoint a guardian of the person, or issue a protective order for an adult. Section 83.17 of the Act provides a three-pronged analysis for the New York state court to establish jurisdiction to appoint a guardian or issue a protective order. The Article also provides special circumstances where, regardless of whether the state has jurisdiction under the general principles outlines, a court may appoint a guardian or issue a protective order. A court that has appointed a guardian or issued a protective order under this Act has continuing and exclusive jurisdiction until the proceeding is terminated or the appointment expires. New York courts are authorized under the Article to decline jurisdiction if the court determines that another state is a more appropriate forum, or if jurisdiction was acquired due to unjustifiable conduct.

Additionally, the Article provides special notice requirements in the event the state was not the respondent's home state on the date the petition was filed. Section 83.29 of this Act details the procedure to apply when a petition for appointment of a guardian or issuance of a protective order is filed in this state and in another state, and neither petition has been dismissed or withdrawn. The Article permits a guardian of a person or property appointed in this state to petition the court to transfer the guardianship to another state. Likewise, New York is authorized to accept guardianship or conservatorship transferred from another state. Sections 83.35 and 83.37, respectively, provide for the registration of out-of-state orders

appointing a guardian of a person and for a guardian of property appointed in another state to register a protective order.

This section of the bill further provides that, in applying and construing such, consideration must be given to the need to promote uniformity of the law among all states that have enacted it. Section 83.43 clarifies the applicability of this Article to certain federal statutes relating to electronic signatures. Lastly, this section provides that the Article shall apply to proceedings begun on or after the Article's effective date.

Section two of the bill amends the Surrogate's Court procedure Act to reflect the addition of Article 83 to the MHL.

Section three amends MHL §81.l8 to allow a state court to use provisions of Article 83 when dealing with a foreign guardian not present in New York State.

Section four provides that the Act take effect immediately.

Justification

Due to increasing population mobility, cases involving simultaneous and conflicting jurisdiction over guardianship are increasing. Often, jurisdiction in adult guardianship cases is complicated because multiple states, each with its own adult guardianship system, may have an interest in the case. Consequently, it may be unclear which state court has jurisdiction to decide the guardianship issue. In response to this common jurisdictional confusion, the Uniform Law Commission developed the uniform guardianship and protective proceedings jurisdiction act (UAGPPJA). The legislation establishes a uniform set of rules for determining jurisdiction, and thus, simplifies the process for determining jurisdiction between multiple states in adult guardianship cases. It also establishes a framework that allows state court judges in different states to communicate with each other about adult guardianship cases.

Adult guardianship jurisdiction issues commonly arise in situations involving snowbirds, transferred/long-distance care giving arrangements, interstate health markets, wandering, and even the occasional incidence of elderly kidnapping. The process of appointing a guardian is handled in state courts. The U.S. has 55 different adult guardianship systems, and the only data available is from 1987, which estimated 400,000 adults in the U.S. have a court-appointed guardian. Even though no current data exists, demographic trends suggest that today this number probably is much higher. Currently, thirty one other states have adopted the uniform guardianship and protective proceedings jurisdiction act. This measure would provide significant savings to the state court system by avoiding costly duplicative guardianship cases.

Legislative history

New bill.

Fiscal implications

None.

Effective date

Immediately.