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Transferring Guardianships from One State to Another

So, you are the guardian and conservator of a loved one, and now you and your loved one are moving out of state. Do you know that there are often additional steps you must take before the move to avoid running afoul of the law?

Virginia, like many states, requires court approval before a resident can be relocated out of the state. Specifically, Virginia Code § 64.2-2019(D), “a guardian shall be required to seek prior court authorization to change the incapacitated person’s residence to another state.” While some local courts will give blanket authority in the initial process, particularly in the case of an incapacitated adult child, some courts will require a separate petition when the details of a move outside of the state can be laid out as a plan before the court.

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Once you have approval and relocate out of the state, however, additional steps are required for the new state to recognize the authority under the old state’s order. Many states have adopted the Uniform Guardianship and Protective Proceedings Jurisdiction Act (UGPPJA), which deals with interstate guardianship-related issues. Specifically, the UGPPJA seeks to avoid duplicative court proceedings in a second state to re-determine incapacity and reappoint a guardian or conservator.

Article 3 of the UGPPJA provides a procedure for transferring a guardianship or conservatorship to another state. To accomplish such a transfer, a song and dance must ensue between the two states, where two court orders are required from both the transferring state and the accepting state. Generally, the transferring court must find that the individual has permanently relocated outside of the state and thereafter issue a provisional order of transfer. The accepting state will then issue a provisional order of acceptance upon a finding that the individual has relocated into the accepting state. For continuity purposes, only after the provisional order of acceptance is issued will the transferring state issue a final order of transfer, thus dismissing the local proceedings.  Unless an objection is made, the accepting court, giving deference to the transferring court’s findings on incapacity and selection of guardian and conservator, will issue a final order of acceptance. The accepting court has 90 days post-transfer to determine whether the order any modification is necessary to conform the guardianship or conservatorship to the laws of the accepting state, but it is my practice that such matter is heard at the time of acceptance.

As a practitioner in a highly transient community, my clients routinely face relocation and guardianship or conservatorship transfers. As a result, I have dealt with a number of transfers from across a number of different states, each with their own little nuances. Some states have forms available to make this transfer process easier for pro se litigants, while others, such as Virginia, do not. If you have a loved one that is subject to a guardianship or conservatorship, discussing logistics early in the process may help establish how best to navigate these issues.

Posted in Senior Law News