NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A857 REVISED 03/12/13
SPONSOR: Weinstein (MS) TITLE OF BILL: An act to amend the mental hygiene law and the surro-
gate's court procedure act, in relation to establishing the uniform
guardianship and protective proceedings jurisdiction act
PURPOSE OF BILL:
The bill addresses the issue of jurisdiction over adult guardianships &
other protective proceedings, providing a mechanism for resolving
multi-state jurisdictional disputes.
SUMMARY OF PROVISIONS OF BILL:
Section 1 of the bill adds a new article 83 to the Mental Hygiene Law
(MHL) to provide for the Uniform Guardianship and Protective Proceedings
Jurisdiction Act.
MHL § 83.01 sets forth a short title of article 83 of the mental hygiene
law as the Uniform Guardianship and Protective Proceedings Jurisdiction
Act.
MHL § 83.03 is the definition section for terms used in the Uniform
Guardianship and Protective Proceedings Jurisdiction Act.
MHL § 83.05 provides a framework for honoring the guardianship orders of
other countries.
MHL § 83.07 provides a framework for communication between courts in
different states concerning a guardianship proceeding.
MHL § 83.09 outlines procedures for cooperation between courts in
different states.
MHL § 83.11 outlines acceptable methods for a court in this state to
obtain testimony from a witness located in another state.
MHL § 83.13 provides the factors a court may use to determine whether a
respondent has a significant connection with a particular state for
purposes of establishing jurisdiction.
MHL § 83.15 provides that this article, subject to section 81.18 of the
mental hygiene law, forms the exclusive jurisdictional basis for a New
York State court to appoint a guardian or issue a protective order for
an adult.
MHL § 83.17 defines a three-level priority system for a New York State
court to establish jurisdiction to appoint a guardian of a person or
issue a protective order.
MHL § 83.19 outlines the special circumstances where, regardless of
whether a New York State court has jurisdiction under the general juris-
diction principles outlined in § 83.09, a court may appoint a guardian
or issue a protective order.
MHL § 83.21 provides that a New York State court that has appointed a
guardian or issued a protective order under this Act has continuing and
exclusive jurisdiction until the proceeding is terminated or the
appointment expires.
MHL § 83.23 authorizes a New York State court to decline jurisdiction if
it determines that the court of another state is a more appropriate
forum, and specifies the factors to be taken into account in making this
determination.
MHL § 83.25 authorizes a New York State court to decline jurisdiction or
create another appropriate remedy if jurisdiction was acquired due to
unjustifiable conduct.
MHL § 83.27 provides special notice requirements if a proceeding is
brought in a state other than the respondent's home state.
MHL § 83.29 specifies a procedure for resolving jurisdictional issues if
petitions are pending in more than one state.
MHL § 83.31 specifies a procedure for transferring a guardianship to
another state. To make the transfer, court orders are necessary from
both the New York State court transferring the case and from the out-of-
state court accepting the case.
MHL.§ 83.33 outlines a procedure for a New York State court to accept a
guardianship proceeding transferred from another state.
MHL § 83.35 provides a procedure for a guardian appointed in another
state to register the out-of-state guardianship judgment in a New York
State court.
MHL § 83.37 provides a procedure for a guardian appointed in another
state to register a protective order from an out-of-state court in a New
York State court.
MHL § 83.39 outlines that upon registration of an out-of-state guardian-
ship or protective order, the guardian may exercise all powers author-
ized in the order except as prohibited by the laws of New York State.
§ 83.41 provides language to encourage uniformity in the application and
construction of the Uniform Guardianship and Protective Proceedings
Jurisdiction Act.
MHL § 83.43 provides for relation to electronic signatures in the global
and national commerce act.
MHL § 83.45 provides for transitional provisions.
Section 2 amends the surrogate's court procedure act section 1758 to
reflect the addition of article 83 to the mental hygiene law.
Section 3 amends the mental hygiene law section 81.18 to allow a New
York State court to use provisions of article 83 of the mental hygiene
law when dealing with a foreign guardian not present in New York State.
Section 4 provides an effective date 180 days after the act becomes law.
JUSTIFICATION:
Due to increasing population mobility, cases involving simultaneous and
conflicting jurisdiction over guardianship are increasing. Adult guardi-
anship jurisdiction issues commonly arise in situations involving snow-
birds, transferred/long-distance care giving arrangements, interstate
health markets, wandering, and even the occasional incidence of elderly
kidnapping. The process of appointing a guardian is handled in state
courts. Often, jurisdiction in adult guardianship cases is complicated
because multiple states, each with its own adult guardianship system,
may have an interest in the case. Consequently, it may be unclear which
state court has jurisdiction to decide the guardianship issue. The U.S.
has 55 different adult guardianship systems, and the only data available
is from 1987, which estimated 400,000 adults in the U.S. have a court-
appointed guardian. Even though no current data exists, demographic
trends suggest that today this number probably is much higher.
In response to this common jurisdictional confusion, the Uniform Law
Commission developed the uniform guardianship and protective proceedings
jurisdiction act (UAGPPJA). The legislation establishes a uniform set of
rules for determining jurisdiction, and thus, simplifies the process for
determining jurisdiction between multiple states in adult guardianship
cases. It also establishes a framework that allows state court judges in
different states to communicate with each other about adult guardianship
cases. This legislation would provide a significant savings to the New
York State court system by avoiding costly duplicative guardianship
eases.
Currently, thirty one other states have adopted the uniform guardianship
and protective proceedings jurisdiction act.
LEGISLATIVE HISTORY:
2012: A.10416-A.Judi
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
180 days after the act becomes law.
