The Three Flavors of Interstate Guardianship

Adult guardianship, or guardianship for incapacitated adults, is becoming more and more common as our population ages and the younger generation steps up to take care of their parents and elderly relatives.  The guardianship (and its sister, conservatorship) statute is a powerful tool for managing the affairs of an elderly person who has lost the capacity to care for him or herself because, unlike a power of attorney, it carries the weight of a court order.

The process is relatively straight-forward, so long as both the incapacitated adult and the family member caring for them live in the same state.  But these days, that's almost the exception, rather than the rule.  More often than not, the elderly person has retired and moved to another state (such as Florida or Arizona), or their kids have moved across the country for a job or other family reasons.  When it comes to interstate adult guardianships, the law offers three flavors:

Appointment in Another State.  This is the most common situation.  The younger family member petitions the court in the state where their elderly family member resides to be appointed as the guardian/conservator.  Most states do not prohibit an out-of-state resident from being appointed, but you should be prepared to demonstrate to the local court that you have the means and ability to effectively manage the incapacitated adult's affairs.  Appointment places a burden on the guardian to regularly visit the incapacitated adult and to actively manager their care and their financial affairs.  You should also be prepared to post a significant bond or surety with the local court to ensure that you will live up to your obligations.

Transferring Guardianship Between States.  Another common situation is where the family member gets appointed as the guardian in the state where the elderly relative resides, and then moves the elderly relative closer to their own home.  In states that have adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, the courts in each state engage in a hand-off of the guardianship to ensure that the incapacitated adult is protected.  The process is somewhat complicated as it requires obtaining alternating orders from each court (much like the hand-off of flight controls between pilots), but the process eliminates the need to re-prove the basic elements (namely, incapacity, need, and appropriateness of the proposed guardian). 

Performing Guardian Duties Out of State.  It is increasingly common for people to own property in multiple states.  In some cases, an elderly person moves out of their residence to live either with family members in another state, or in a care facility nearby.  In other cases, the elderly person may have owned a vacation home or investment property in another state.  In such cases, a guardian or conservator appointed for the person may be called upon to sell the out of state property or deal with taxes or other matters related to the out of state property.  In these cases, the appointment of guardianship or conservatorship may be recognized in the other state for a limited purpose.  This process is much less involved under the Uniform Act and does not require the multiple step hand-off that transferring a guardianship between states does.  However, you'll want to keep in mind that the court recognizing an out of state guardianship cannot grant additional powers - it can only recognize the powers granted by the originating court.  

For example, the courts in some states require a guardian or conservator to get specific permission from the court before selling the incapacitated adult's property.  If that order is recognized in a new state, that court can't authorize the sale without permission from the originating court.

Whatever your specific situation, remember that the laws are there to assist families while also protecting the rights and dignity of people who need help.  With a little planning and the aid of an experienced attorney, getting appointed and serving as a guardian or conservator for an incapacitated family member should be no problem.