Loud and Clear: A Special Needs Conversation

Transferring Guardianship Between States

By Scott C. Suzuki, Esq.

With the increasing mobility of American families, the need to transfer guardianships between states is on the upswing. A new job (or military assignment), supports that better meet the ward’s needs, or even a more favorable climate are among the many motivations.

Moving is one of the most stressful things that anyone can do, let alone helping someone who has special needs move. Different states have different rules that may further complicate a move involving a person who is under guardianship. Commonly, guardians may need to take special steps to help their ward maintain or re-apply for government benefits, such as Medicaid or SSI (Supplemental Security Income). Guardians seeking to move their wards from the state that originally granted them guardianship should also consider whether the new state would recognize their authority.

Transferring a guardianship from one state to another can be complicated, so it is important to seek counsel in both the original state and the new state. If both states have adopted UAGPPJA (Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act), the process should be simplified and just require procedural paperwork. Currently passed by 37 states, Puerto Rico and the District of Columbia (click here to learn with states have adopted UAGPPJA), the uniform code is intended to streamline the transfer process by stipulating that the substantive findings of the originating state be recognized and adopted by the new jurisdiction.

Potential Complications

When both states have not signed up for reciprocity, guardians may need to start the guardianship process over by petitioning the new jurisdiction’s legal system for a brand new appointment to be recognized in the new state. A guardian may also need to petition the originating state court for permission to even take a ward out of the original state. Should this be the case, there would be two proceedings in two different states with different jurisdictional bases to proceed or decline to proceed. Since definitions of capacity, limits to guardian powers, and many other factors differ across the nation, there’s always the risk that the new court’s findings will conflict with earlier determinations. In addition to the law-school-exam-style complexity of the procedural concerns, a guardian would also have to contend with the expense of attorneys, medical experts, investigators and, possibly, bond premiums. In such a situation, guardians must continue filing reports and accountings with the original state and, in the interim, service providers and financial institutions in the new state may fail to recognize their authority.

I know of a situation involving two states that had not yet passed UAGPPJA, where the originating state’s refusal to relinquish jurisdiction resulted in two years of judicial back and forth, including establishment of a separate conservatorship to manage the ward’s special needs trust. While the matter was ultimately settled, the cost and upheaval were considerable.

In order to be compliant with UAGPPJA:

  • the ward must be permanently relocating to the new state;
  • the move cannot be detrimental to the ward’s interests;
  • there can be no opposition to the relocation; and
  • plans to care for the ward in the new jurisdiction must be “reasonable and sufficient.”

These stipulations have the additional advantage of preventing quarreling family members from moving a vulnerable relative across state lines in an effort to terminate debate or for their own advantage. Consider, for example, a scenario involving an adult child’s disagreement with a stepparent on nursing home care for a parent with dementia.

I’m also reminded of a situation in which, due to neglect, a public guardian had been appointed for an individual with special needs. The negligent family members petitioned to establish guardianship in another state in which abuse allegations had not been investigated and the matter could proceed uncontested. The order appointing guardianship in the new state allowed the new state guardians to move the ward from the original state, even over the objection of the former counsel in the original state. The frail ward died within hours of arriving in the new jurisdiction, allowing for the negligent family members to receive the protected person’s assets almost immediately. Had either state enacted the UAGPPJA at that time, the “no detriment/no opposition” standard likely would have applied to block the transfer and better protect the ward.

UAGPPJA in Practice

When UAGPPJA is in place, guardianship transfer becomes a largely clerical operation: permission from the originating state court to transfer; a request to the new home state to begin proceedings, then various back and forth notifications until the final transfer has been accepted and the file can be closed in the former home state.

But even when UAGPPJA has been adopted by both states, there can be additional details to work out. Different terminology may be used in each jurisdiction, requiring attorney time to work through the semantics. And in my home state of Hawaii, where UAGPPJA is taking effect this year, the legislation includes a caveat indicating that the court may request an evidentiary hearing when transfers are requested. So, while unlikely, extensive proceedings are still a possibility.

The Special Needs Alliance, with highly experienced member attorneys in most states, is an excellent resource if you’re considering a relocation. They can advise you concerning not only the requirements for transferring guardianship, but of differences in public programs and the availability of local services. Begin early to plan for such a move.

Posted: January 12th, 2014 | 51 Comments »

51 responses to “Transferring Guardianship Between States”

  1. Patti Wimmer says:

    My daughters and I are relocating from Indiana to Florida. My 23 yr old has Down Syndrome and her father and I (we are divorced) have co-guardianship for her. I need to know how to get the guardianship transferred to Florida and get me put on as the primary so her father doesn’t have to sign for things since he is not moving. He is fine with signing the papers for that. I also want her sister (who is 19) to be put on as a guardian since she helps to take her to appointments and such and my mother since she will watch her when she comes back to visit her father and isn’t always able to be reached quickly. My lawyer and several judges up here do not know what to do about transferring guardianship down to FL. Please help if you can. Thank you!

  2. W.B. Pendleton says:

    Attempting to transfer guardianship between Cook County, Illinois and McCracken County, Kentucky has become a “catch 22”.

    Although both states have signed the UAGPPJA, Kentucky refuses to set a docket without the official court records(originals only; official copies NOT accepted). This means Illinois must first close the case file.

    Illinois will not close the case file until McCracken county opens a new case file and submits proof. Illinois has issued a provisional order transferring guardianship to McCracken county but McCracken county will not accept the official (stamped)copy. issued

    • Margaret Martino says:

      wondering what the outcome was as I am currently guardian of grand child trying to move from Kane County Illinois to Tooele County Utah

  3. E.ruppert says:

    Infant was in MIssouri, Mother arrested ,gave temporary guardianship to paternal grandfather who took minor back to Minn.and has applied for temporary guardianship of minor, father of minor in U.SA.F. service has been notified and now is trying to take guardianship and take minor to Colorado, minor since birth has been living with Mother in Wisconsin with maternal grandmother who has been supplying health insurance for both minor and minor’s Mother since minor’s birth and registered in state Wisconsin, minor’s mother has a Wisconsin driver license showing residency with maternal grandmother with this minor and has been a constant in minor’s life since birth as well as minor’s paternal family members and maternal family both live in same town, and removal from this residency to either Minn/or Colorado is of detriment to this toddler as she has not had contact consistently with the father since birth as parents were never married and father has never shown concern until this present situation of Mother’s arrest. Maternal grandmother wants to place motion in Missouri court /Wisconsin court for temporary guardianship to keep continuity in this minor’s life with family members of both parents who live in same town and have had contact of minor since infancy and change of residency will cause emotional trauma to this minor un-necessarily. What can be done ? Maternal Grandparent has received forms for temporary guardianship in home town in Wisconsin, what other action should be taken?

  4. Rod says:

    I was appointed guardian of my father in FL. I was assigned a new Navy post in Japan and allowed my father to stay with my brother in FL. My brother and his family moved to CT and took our father with them. I am okay with my father being in CT, but we did not receive court approval prior to them moving to CT. Is there some sort of emergency transfer of guardianship and change of venue to file with none of the parties no longer residing in FL?

  5. Colleen Burns says:

    My sister in NC has adult guardianship of my mother. My mother is under Medicaid and her money is gone. My sister will now allow me to have guardianship. How do we go about the transfer. My mother is 88 and has dementia leading to Alzheimers.

  6. Geri rose says:

    I have guardianship over my friend’s son we are wanting to move him to Virginia can we do that

  7. Ellen says:

    I have legal guardianship of my mother who is incapacitated in FL & I want to move her to HI to live closer to me. I have a lawyer in FL who I have established guardianship there. Do I have to get another lawyer in HI to transfer? Is there some paperwork I can just fill out instead since I am already a legal guardian?

  8. Robert Wahl says:

    I need to transfer from Ohio to Indiana guardianship of my son who has schizophrenia What do I need to do? We live on a fixed income.

  9. Cathy Bahan says:

    You may want to consult one of our member attorneys. If you go to https://www.specialneedsalliance.org/find-an-attorney/, you’ll find a directory that’s organized by state.

  10. Duane McDonald says:

    As you read this you should come to see it as part of the
    lawyers full employment act.

  11. Nicole says:

    I am a minor under the custody of my father. I want to live with my Grandparents in Nevada for my senior year of high school so I will have in-state tuition when i go to college. Do my grandparents have to have custody of me to be a resident or do I get residency just by living there for a year or more?

    • Mary Ann says:

      How were you able to resolve this? I’m sure others in your position would like to know. Aren’t you old enough to be legally able to choose for yourself? You’re obviously not old enough to vote or sign a legal document, but there are many things a 17 year old is allowed to do.
      Anyway, I’m sure others would like to know how you were able to resolve the problem, if you could. Please post what happened!

  12. Jan says:

    I have legal guardianship over my two grandchildren. They been in our custody for 8 years. We are now thinking moving to Washington state, we live in Indiana. What are the procedures to get this going ? The parents are not active in their lives.

    • Bill says:

      I would also like to know this except coming from California to Idaho. We’ve had our grandchild about the same amount of time.

  13. william says:

    can a guardian open a guardianship bank account for the ward in another state after she was released by the court as guardian ,

  14. william James says:

    my guardian was released as guardian by the probate court , she then went to another state and opened a guardianship account for me there with out permission, can she do this as she is no longer the Guardian , I am a adult ward.

  15. Cheryl Winter says:

    My granddaughter wants to finish her last year of high school here in Knoxville, TN. She lives in Florida with her father, my son. He is willing to let her do this but we aren’t sure what to do first. Because school starts earlier in TN than FL, there isn’t much time to get things done prior to signing her up in TN. She also gets her deceased mother’s SS so how is that legally coming to us so we can use it for her care here?

  16. anesia says:

    My son is 14 his father passed june1,2016 the fathers sister took my son across state line with out contacting the natural parent who has Legal Parental Rights.

  17. Priscilla Hall says:

    My daughter is severally mentally disabled and needs lojg term care in a facility that is not in the same stste as her guardian lives. Can she be allowed to move to this facility to recover from her medical issues and recieve medicaid there even tho her guardain lives in a different.

  18. Melissa Marth says:

    I have subsidized guardianship of my niece. We’ve had her for 13 years and are thinking about moving from Illinois to Kansas. Is this possible?

  19. Catherine Forsyth says:

    I lost custody of my children a little while ago and they were put with family. I maintained my relationship with them over the years and my 8 yr old (been with my family in Michigan) wants to come back home to KY. I still have 1 year before I can petition for custody back but my family is ok will him coming back HERE to ky with me now. Well, I can’t get him in school with out Guardianship. My fiancée is willing to take on that responsibility for me…. that way not only would he be back with me but he would be able to have a relationship with his siblings. So I have a question, he was born in ky and he lived here till 2014 when he went to MI, would my fiancée petition in KY or would we have to somehow petition in MI for guardianship? Thanks for reading.

  20. I live in TX and court gave me permanent legal guardianship of my grandchild since I have served as such from 2011 to present. I would like to move from TX to Alabama to be with my family. What are the rules so I can move? The parents are divorced and neither have provided me with support and or not active with the child.

  21. W peeples says:

    I was legally appointed guardian for adult sister by the district court in KY. In 2012. Will this appointment, cover me to oversee the sale of a house co-owned by her. The property is located. In tar rant county Texas. The other co-owner is the estate of the exhusband who resides in terrrant county.

  22. edward bangs says:

    Is it possible to transfer guardianship of a special needs brother from brother to brother in different states from Massachusetts to a brother living in Virginia and stay living in Massachusetts

  23. David says:

    my adult mother moved from michigan to texas and I was given guardianship over her because of deminished mental ability on her part. I need to transfer the guardianship from michigan to texas but I am not sure how to do this. Financially we can not afford a lawyer to do this and I simply do not know what to do.

  24. Pazong says:

    I want to be a gaurdianship for a baby in Minnesota, but I am from Wisconsin. Will they let me be a gaurdian?or how long would paperwork be process?

  25. Blanca De Leon says:

    My sister has 2 children in the state of California, she has recently lost two child to a foster home. The father of these kids is in the picture but he can’t keep the boys donto some records of his as well. Can I (the aunt) do a request for custody from a different state (mn)? Please advise! Thank you

  26. Jody says:

    I have sole guardianship of my daughter aged 29. She lives with her boyfriend. We both live in the same state and county , however a job opportunity has come up for me and I may have to move about 4 hours away to another state. Can I still be her legal guardian?

  27. Ana Canevaro says:

    Hello:
    I have a 48 year old brother who lives in Puerto Rico. His legal guardian is my father. I reside in Austin, Texas. What is the process to transfer the legal guardianship from my father in Puerto Rico to me in Texas. Your assistance will be highly appreciated. Thank you!

    • Emma Wilkins says:

      Hello…My parents were divorced 35 years ago (3 kids) because he was physically abusive to us kids….we are now adults and my sister is in a coma.(55 years old).no kids..no spouse. This man..who she talked to 2 times in 15 years (I haven’t spoken or seen him since I was a kid) is trying to steal all her belongings, he will not let the hospital give me information and is the only living parent. I was the closest family member and there is alot of money at stake so I know thats why he is trying to get control. Our father approved of other men abusing us and fractured my brothers skull when we were kids. Help!!

  28. Rochelle Briggs says:

    My name is Rochelle Briggs and I live in Indianapolis Indiana and I would like to get guardianship of my brother that lives in Ben Harbor Michigan how do I go by becoming his legal guardian and he is also married which make his wife is legal Guardian How can I get my brother

  29. Kali says:

    My situation is primary home state jurisdiction is in Arizona connected jurisdiction is in Minnesota. We went for a visit to Minnesota from Arizona where he has been for 2 years while in Minnesota his two sons filed incompetency which got him immediately assigned guardianship and conservator. Although the judge is a tribal judge she does not have proof. No 2 doctors have verified that he is incompetent. In fact no doctors have determined incompetent but the tribal judge claiming its file is closed for protective issues. The assigned Guardianship and conservatorship from Minnesota the guardian herself requested that it be released closed and that he returned to Arizona with me we’ve been together for 20 years so why wouldn’t I continue taking care of him. The judge did not release the guardianship assigned and was requiring us to stay in a hotel because that’s in her jurisdiction after weeks of being in the hotel we couldn’t afford it anymore so we came back to Arizona where he wanted to be and the guardian stated it would be closed. After arriving in Arizona we had a phone hearing and that’s when she admitted the judge admitted that she didn’t have enough assessment to meet the qualified needs or however she put it Stadium no proof of incompetency and she wanted social workers to look for evidence down here and Arizona. After our phone hearing she served a temporary restraining order and kidnapped him restrained him and took him out of his home where we were I was taking care of him and had physical therapy started speech therapy… he’s total right side paralysis from a stroke and doesn’t speak well so he can’t speak his mind he cannot fight for himself although when paramedics came he was fighting and they restrained him and took him out of his home put them in assisted living and hid him from me. They wouldn’t tell me it wouldn’t do anything to allow us to communicate. The restraining order was illegally served from a Minnesota tribal judge serving on on Indian it in Arizona but that got him taken away none the less. That was September 7th they assigned guardianship 90-day emergency is expired December 7th 2016 it was at that time they since moved him to Minnesota and put them in a nursing home..he wanted me to be his Guardian if he ever became incapacitated or incompetent but the judge Trumped all documents made prior to this hearing and it was recorded in reservation Health file that he requested me as the guardian and power of attorney… so I file for Guardianship and December and was denied because there’s another proceeding as an amended the petition and stated we have Primary Home State jurisdiction in Arizona and that emergencies only valid 90 days and it is up to this Arizona home state to request Minnesota to close their case at the request of home state jurisdiction. My fear is the judge will not allow me guardianship when he’s buy certain family members in Minnesota even though in a nursing home and not his wish he’s not incompetent they’re not allowing him any right to be heard he gets no choices and he told his son in the hearing stay out of my life you’re not my kid I want nothing from you he doesn’t want to be around his family back in Minnesota the doctor has made a statement that it is healthier for him to be in Arizona they moved him back there during winter. So my question is how do I just perhaps get the judge in Arizona to see he’s not incompetent going against another judge which is highly unlikely but how do I get this judge in Arizona the commissioner to see that issuing me guardianship or that he’s not incompetent so I could go back there and Marry him and then bring him back… if that judge sees me she will slap a permanent restraining order on me and throw me in jail for violating an order she states is valid but then I would be in her near her jurisdiction what’s the proper procedure to get him back through the courts. Fat judge was totally wrong and claiming a temporary restraining order out of her jurisdiction she is wrong for issuing him incompetency without 2 doctor’s orders he’s not receiving therapy now she moved him against doctor’s orders to be in warm country in the winter how do you fight this and she found on tribal Law which means nothing but they make their own laws up and seal all cases so you can’t do anything or see anything they have allowed no communication no choices how do I fight this. I need an answer by next week my granny’s birthday is the end of the month she’s turning 101. I have court in Arizona on the 21st and I have not given notification so I’m just trying to see if I have to give notification to get incompetency diminished and just get permission to get married from an AZ Judge..what do i file? Or prove…we have been together 20 years…its his family wanting control and nothing more than hating me…how sad can people be or ignorant i am not sure which but both are just selfish control over someone..i have a different view of the Sioux Indians.

    • Mary Ann says:

      How were you able to resolve this? Were you able to marry him and claim rightful guardianship that way? This sounds like a fascinating situation, and I hope you were able to resolve it happily!

  30. ThomasLugenbeal says:

    I have a guardian I don’t want. My bother (OUT OF STATE). Has agreed to be my guardian. I can make my own decisions and hold my own money. Can he do it? DoI really need a guardian?

  31. Chris says:

    I live in Georgia and have legal guardianship over my adult child that is mental disabled. She is moving to Missouri to live with her mother. More family support to assist. Can I transfer guardianship to her mother in Missouri with out going through an attorney?

  32. I have two children (grand kids) that I’ve been given permanent guardingship. The star I live in is Arizona, and I’d to relocate to another state. Sandiago California or Orlando Florida. I got a huge settlement thru a lawsuit in wanna move. Do I need permission or just turn a change of address in be on time again when paper work is due again.

  33. G.O.M. says:

    How do I acquire a written certification that a relative did not have a formal guardianship established/recorded in Puerto Rico? I was verbally informed that a guardianship did not exist in Puerto Rico, but I need a written certification to that effect.
    A relative relocated another one of their relatives from the state of Florida into Puerto Rico. The relative noted herself as guardian of the other relative in Florida documents as well as in Puerto Rico documents. There is no guardianship petition established/filed/recorded in the State of Florida and so a transfer of guardianship could not have occurred from Florida to Puerto Rico.

  34. Dulce Patterson says:

    My husband and I have been married for 9 years in Houston, Texas and his mother lives in Wausau, WI. Her mental state has deteriorated since she widowed, leaving her all alone in WI. He is her only son and we were notified that she is in Ward Mental Health care. We requested for her transfer, but was not heard because she was diagnosed with schizophrenia. What are our options?

  35. Cathy says:

    Our autistic son will be eighteen in the fall. w live in PA.

    We plan to move to Florida in the future to be closer to family . Can we apply for guardianship then if he goes willingly?

    He can not take care of himself at this time.

  36. Anne says:

    my husband and I have permanent guardianship over our 4 yr old God Daughter. she was abused, neglected, and abandoned DCF placed her in our custody July 2015. it became final last Sept for legal guardianship and the case was closed. my husband is working in GA now, and we need to move. How do I transfer Guardianship from Florida to GA?

  37. Mary Arnold says:

    I have an adult daughter who is the ward of the state in GA. A formal caretaker who now lives in South Carolina, wishes to get guardianship and care for my daughter there. They both adhere to the UAGPPJA law. Can she petition here or does she have to petition from South Carolina

  38. dee and brian says:

    need to transfer my aunt from ny to fl. she has alheimer. we are on her will as her estate trustees and beneficiary. who is an attorney who specializes in this

  39. Rebekka says:

    I am looking to adopt take over guardianship for my second cousin who will be born in Oklahoma in March 2018. I live and work in Nebraska. I and my cousin and their parents are Native Americans enrolled in tribes in Oklahoma and Kansas. What process do I need to go through? I’d like to take the baby home as soon as I can.

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