Facts:
Grandma lived her entire life in Tucson. She has been widowed for 20 years, and is now in her late 80s. She has three children, two of whom live in Tucson and one in California.
Grandma's oldest granddaughter lives in Arkansas, where her husband is stationed in the military. Six months ago she came to Tucson to visit Grandma, got into a fight with her uncle (who lives a couple blocks away from Grandma and has been, in his mind, keeping an eye on her and helping take care of her) and ended up loading Grandma and most of her personal possessions up and taking her to Arkansas.
Son insists that his niece has kidnapped Grandma. Granddaughter insists that Grandma wanted to move, and was tired of being bullied by her son. Grandma herself tells visitors that she loves her granddaughters house, likes having a separate apartment, is enjoying Arkansas but does miss having contact with her two Tucson children. No comprehensive medical evaluation has been completed since the move, but Son points out that Grandma was diagnosed as early stage dementia by her Tucson doctor, and says that he is worried that the move--and the change in treating physician--might endanger his mother's health.
Law:
Generally, guardianship proceedings must be commenced where the proposed ward resides. Some states add a provision allowing the guardianship to be initiated in the state where the ward can be found. Conservatorship (guardianship of the property) generally must be initiated in the state where the ward resides, but may be appropriate in a state where property is located.
Assuming Son wants to initiate a guardianship proceeding, can he do so in Tucson? Does he first have to show that Grandma lacked the capacity to change her residence--that she didn't really understand that she was moving to another state, or that she wasn't able to agree to the move?
There is also a principle known in the law as forum non conveniens, under which a court may decline to take jurisdiction even though it could, because it would be inconvenient for the litigants. Applying this doctrine, the Tucson courts might rule that, thought they could hear the guardianship and/or conservatorship proceeding, it would be more convenient to have an Arkansas court decide the matter. After all, the key question will be Grandma's capacity and understanding of what is going on around her, and however she got there it is now easier for Arkansas participants to produce evidence on that subject than it is for Tucson residents.
The Practice:
We are seeing more and more of these cases recently. I'm not sure what it is, but suddenly allegations of kidnapping (almost always countered with allegations of neglect or even abuse) are common in our practice. What has changed? We have been a highly mobile society for decades, even generations. In fact, Grandma--born and raised in one place, and living her entire adult life there--is now very much the exception. But that doesn't explain the recency of the phenomenon.
These battles are often--but absolutely not always--really about money. Once control of the finances gets settled, it is amazing how often both sides back off and agree to any reasonable resolution of the living and care arrangements. But perhaps that's just my jaded inner lawyer talking.
Who should hear Grandma's case? Generally speaking we believe that the court where Grandma is staying should have first dibs on the case--even in the fact of arguments that she never really chose to live there. Yes, it is true that we need a system that does not encourage kidnapping for tactical advantage (it hasn't been all that many years since we all began outlawing similar practices in child custody cases). We have been involved in cases where the relative who grabbed Grandma turned out to be endangering her life with bad care, or (and more commonly) stealing her money as fast as can be. But still, the local court where she is now located will have a better handle on how to solve those problems and clearer authority to deal with them.
Theory Meets Practice:
A current case in our office demonstrates the problems with that simplistic analysis. Bruce used to live in Minnesota, and still has a home there. He hasn't been to the home in years, however, and also owns a home in Tucson. He is clearly a Tucson resident, and we have been appointed as his guardian and conservator in a Tucson proceeding.
Minnesota has (or so we have been told) a recent history of guardians selling property to cronies at steeply discounted prices. So even though there is an Arizona judge looking over our shoulder, Minnesota insists on having a separate proceeding, complete with a repeat of all the due process protections afforded to Bruce in his Arizona proceeding, before allowing Minnesota property to be sold.
Well, that's annoying but not really that bad, you might argue. Too much due process is better than not enough. And if we're behaving properly, why would we object to having another judge--one who isn't dazzled by our local reputation--look over our shoulder.
There are 7,000 reasons why the duplicate Minnesota proceedings are wasteful. That's how much we have been advised (by our Minnesota lawyer) it will likely cost to get permission to sell the property. Oh, and as the market continues to slip, assume we won't get authority to sell for at least several nail-biting months.
The Solution:
We need a reasonable approach to these cases. We need an interstate agreement on how to handle wards who have ties to (and possibly property in) more than one state. We need something like the Uniform Child Custody Jurisdiction and Enforcement Act, which addressed the similar problem facing many families in (and after) divorce proceedings. That Act made clear that the central issue was the welfare of the child, and that the legal system ought to be focused on that rather than solely on the sometimes arcane rules of jurisdiction and venue.
Robert B. Fleming
Fleming & Curti, PLC
Tucson, Arizona
www.elder-law.com
www.specialneedsalliance.com
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