Prepared for NAPAS by

Center for Public Representation

Northampton, Massachusetts

     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 whohave guardians to be sent to another state to obtain specialized services. A program in NewHampshire, for example, provides residential services to individuals with head injuries from ascore of states. Long term care facilities and residential schools in Massachusetts serve manypeople who have guardians appointed by New York courts. Likewise, individuals who aredischarged from institutions in one part of a state (where a guardian was appointed), may move tocommunity living situations in another. People with disabilities may also choose to relocate, withor without their guardians' permission.   (See footnote 1)  Some wards may live in one state but have property inanother.   (See footnote 2) 

    For people who move from state to state, the issue is one of conflicts of state laws. ArticleIV, § 1 of the United States Constitution requires courts in each state to accord “full faith andcredit” to judgements of courts in other states. However, that requirement is not absolute. Acourt, for example, need not give full faith and credit to a judgment that was rendered by a courtwithout 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 ofguardianship, have refused to give full faith and credit to foreign decrees if the “best interests” ofthe 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 isdomiciled or is present. The Restatement (Second) of Conflicts of Laws recognized those twocriteria (domicile and presence) to ensure that the states will be able to protect vulnerable peoplewithin their borders. Restatement (Second) of Conflicts of Laws § 79 (1971)(applying same ruleto children and adults).   (See footnote 3)  Consequently, a Kansas court refused to give full faith and credit to aNebraska 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 aFlorida 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 hisguardian pursuant to a Maryland order. The wife could not place her husband's person under thejurisdiction of another state while he remained in Maryland. Mack v. Mack, 618 A.2d 744 (Md.1993).

    Likewise, the Supreme Judicial Court of Maine exercised its jurisdiction over a Maineresident with a Massachusetts guardian appointed by a Massachusetts Court. The Court refusedto appoint a temporary guardian, however, finding that the petitioner's allegation that the wardhad been given unauthorized medication was insufficient to establish the extremely seriousemergency that would be necessary for the Maine Court to act to protect the ward. Guardianshipof 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 hermother, who had a corporate guardian appointed by a Florida court, from a Florida nursing hometo Massachusetts without the authority of the guardian or the Florida court. The MassachusettsAppeals Court give full faith and credit to the Florida decree. Guardianship of Enos, 670 N.E.2d967 (Mass. App. Ct 1966). The Appeals Court noted that “courts have declined to give anotherjurisdiction's valid guardianship order full faith and credit only when the best interest of the wardrequired otherwise.” The Court noted that the daughter had shown no reason not to accord fullfaith and credit, that the Florida venue was more convenient to most of the parties, that thedaughter had already appeared there to contest the appointment of the corporate guardian (indeedthe daughter's motion to remove her mother to Massachusetts was pending there when she wentto the nursing home, took her mother and brought her to Massachusetts), and that the Floridacourt 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, theguardianship venue moves with her. Most courts cite to the ability of the closest court to providewhatever 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 isdomiciled; 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, butneed not, give full faith and credit to an existing guardianship. Persons under guardianship mayfind their rights restricted by these general rules. There may be confusion about who is theguardian, what authority the guardian has, and where it can be exercised. P&A attorneys and staffshould check local case law and statutes to determine just how such questions may be resolved intheir states.