Transfering Guardianships Between States

Guardianships are generally subject to the ongoing supervision of the court where the guardianship was first established. Occasionally, someone who has been granted guardianship by the probate court in one state needs to transfer the guardianship to another state. This generally happens for one of two reasons: (1) the guardian and incapacitated person move to that other state; or (2) there needs to be a new guardian appointed because the incapacitated person is going to move, but the current guardian is not. The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act-adopted by Indiana and most other states-provides a uniform set of rules to simplify this process. This Act was first adopted by the National Conference of Commissioners for Uniform State Laws at its 2007 annual meeting and presented for adoption by the individual states. The need for such a uniform law arises because states often have their own laws that conflict with the laws of other states. These conflicts between the guardianship laws in different states lead to difficulties in the administration of a guardianship, such as:

  1. The problem of having a guardianship subject to multiple jurisdictions. When this happens, which state's law should apply?
  2. The problem of transferring guardianships to another state. This could be quite problematic and costly where the requirements for establishing guardianship in one state differ from the state to which transfer is sought-leading to increased costs and complications.
  3. The problem of out-of-state recognition and enforcement. Where the laws differ, one state might not recognize a guardian's rights or duties.
  4. The problem of addressing emergencies when visiting another state.

Prior to any interstate agreement, there was no clear way to resolve these interstate jurisdictional inconsistencies and their resulting quandaries to the parties involved. So there has been a need for some time for a solution. With the adoption by the various states of this interstate act, those states that participate by adopting it are better able to resolve their citizens' problems.

THE PROCESS FOR INDIANA RESIDENTS

Indiana is one of the states that has adopted the Act, and our firm has participated in the transfer of guardianships into Indiana, as well as the transfer of guardianships from Indiana to other states. The following four steps are a summary overview of the process to transfer a guardianship to Indiana. (The reverse of these steps would apply when leaving Indiana):

  1. The guardian should petition the out-of-state court with jurisdiction over the guardianship for a "provisional" transfer of the guardianship. Unless an Indiana lawyer is admitted to practice law in the state where the guardianship is pending, that lawyer may not be able to represent or assist you in this process. Many counties have pre-printed forms that will allow you to do this yourself.
  2. Once that "provisional order" of transfer is issued by the other state, it will be filed along with a petition to accept provisional transfer in the appropriate Indiana probate court where guardianship will be transferred.
  3. Once the Indiana court issues its "acceptance" of provisional transfer, that acceptance must be filed with the out-of-state court with a request for final transfer.
  4. When the out-of-state court issues its final transfer order, we return, once again, to the Indiana court with that final transfer order and request issuance of a final order accepting transferred guardianship to the local jurisdiction.

This is just a simplified overview. The process is more detailed, as there are statutory requirements of notice to certain parties, provisions for a hearing, waivers and consents, and the like, much of which are requirements you would face in establishing a new guardianship. What you tend to avoid through a transfer rather than a new guardianship is the proof of incapacity that would otherwise be required. Once all of that has taken place, you will need to register the guardianship with the State of Indiana and comply with Indiana's requirements for inventory and accounting filings with the local court.

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Thomas E. Scifres, PC-Attorney At Law
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Salem, IN 47167

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