Fleming & Curti, P.L.C. - Wisconsin High Court Looks At Interstate Guardianship Issues

JULY 11, 2005 VOLUME 13, NUMBER 2

Wisconsin High Court Looks At Interstate Guardianship Issues

We are, of course, an increasingly mobile society. In many ways America’s fifty-state patchwork of legal systems is ill-suited to deal with that mobility. One clear example of the constraints faced by people who move across state lines arises in the context of guardianship and conservatorship cases.

Take, for example, Jane (identified in the legal proceedings as "Jane E.P."), a resident of an Illinois nursing home. Jane suffers from Wernicke’s encephalopathy, and her sister Deborah V. was appointed as her guardian by an Illinois court. Most of Jane’s relatives, however, live across the state line in Wisconsin, and so Deborah determined that it would better for Jane if she could move the fifteen miles from Galena, Illinois, to a facility in Cuba City, Wisconsin.

Deborah wanted to get a Wisconsin guardianship ready for her sister’s arrival, and so she contacted the Grant County (Wisconsin) Department of Social Services. The Department filed a guardianship petition with the Wisconsin court, and the judge ordered that the community mental health program prepare a report addressing whether the guardianship was appropriate.

That agency took a different approach, however. It noted that Jane was not yet a Wisconsin resident, and moved for dismissal of the guardianship proceeding because Wisconsin law does not permit establishment of a guardianship over a non-resident. Grant County Circuit Judge Robert VanDeHey agreed, and dismissed the petition.

The Wisconsin Court of Appeals reversed the trial judge, ruling that the effect of his decision would be to deny Jane her Constitutional right to interstate travel. The mental health agency then appealed that decision to the Wisconsin Supreme Court.

In a comprehensive and thoughtful written decision, Justice Ann Walsh Bradley considered the dilemma posed by state court guardianships in a mobile society. Although she made clear that the state legislature should address the question, until it chooses to do so she set out an approach for Wisconsin courts to use. According to Justice Bradley, Deborah should first petition the Illinois court for permission to move her sister to Wisconsin. Assuming the Illinois court approves, she should then petition the Wisconsin court to accept the existing Illinois guardianship, then move Jane, and then terminate the Illinois proceedings. The Wisconsin court could then make its own determinations about whether to schedule periodic reviews, appoint an attorney or investigator, or take any other steps necessary to properly supervise the continuing guardianship.

Justice Bradley made clear that Wisconsin courts need to give "comity" to the holdings of the Illinois courts. While Wisconsin may impose somewhat different restrictions on the appointment or management of guardians, the presumption should be that what happened in another state's courts was proper, regular and presumptively valid. In the Matter of the Guardianship of Jane E.P., July 7, 2005.

Surprisingly, few state laws exist to resolve the kind of problems faced by Jane and her guardian Deborah. Arizona law is no better developed than Wisconsin’s was before the Jane E.P. decision, and there is a need for thoughtful legislation on the subject. That need has been recognized by the National College of Probate Judges and the National Center for State Courts. See, for example, the 1998 final report of the National College of Probate Judges' Advisory Committee on Interstate Guardianships.

The National Conference of Commissioners on Uniform State Laws (NCCUSL), an independent agency which develops and promulgates uniform laws on a wide variety of topics, has begun to address the interstate guardianship problem in its Uniform Guardianship and Protective Proceedings Act. That proposed law would permit a state court to forward its pending proceeding to another state's court when a ward moves, or to decline to accept jurisdiction altogether if another state seems to be more appropriate for resolution of the ward's legal status. Unfortunately, the NCCUSL uniform law has only been adopted in Alabama, Colorado, Hawaii, Minnesota and Montana.

At Fleming & Curti, PLC, we usually take the position that a guardianship or conservatorship obtained in one state remains valid in the new state after a move. Arizona's courts do not usually insist on giving prior approval before a move out of state, so an Arizona proceeding frequently can continue for months, years or even the life of the ward despite the ward's relocation to another state. Frequently, however, we urge guardians and conservators to initiate local state court proceedings once it becomes clear that the ward's relocation is permanent; it only makes sense for the local court to supervise the continuing management of the ward's care and finances.

On the other side of the equation, we customarily recommend that individuals with out-of-state guardianships or conservatorships continue to manage with those arrangements after a ward has moved to Arizona. Eventually it may become problematic and require an Arizona filing, but until there is difficulty accomplishing a guardianship task, or the original state requires an Arizona proceeding, it may be unnecessary to initiate anything in the Arizona courts. After all, the U.S. Constitution directs Arizona and all other states to give "full faith and credit" to the court proceedings of sister states.