71 The Alabama Lawyer 388 (2010). Alabama's New Uniform Guardianship and Protective Proceedings Jurisdiction Act: Providing Clear Guidance for the Management and Resolution of Interstate Guardianship and Conservatorship Disputes.

• Author: By Hugh M. Lee

Alabama Lawyer

2010.

71 The Alabama Lawyer 388 (2010).

Alabama's New Uniform Guardianship and Protective Proceedings Jurisdiction Act: Providing Clear Guidance for the Management and Resolution of Interstate Guardianship and Conservatorship Disputes

Alabama's New Uniform Guardianship and Protective Proceedings Jurisdiction Act: Providing Clear Guidance for the Management and Resolution of Interstate Guardianship and Conservatorship DisputesBy Hugh M. LeeWhat happens when a client, concerned about the care of his or her incapacitated parent in a Florida nursing home, checks that parent out of the nursing home, relocates the parent to a facility in Dothan, Alabama and petitions the Houston County Probate Court for guardianship and conservatorship? How should a court respond when family members engage in an interstate "tug of war" over the care of an incapacitated family member and control of their estate? How should an Alabama court treat guardianship and conservatorship orders entered by another state? What about the treatment of guardianship and conservatorship decrees issued by the courts of foreign countries?

These myriad questions and others are addressed by the Uniform Guardianship and Protective Proceedings Jurisdiction Act (UGPPJA), a new Act recently passed by the Alabama Legislature which establishes clear guidelines for the resolution of interstate jurisdiction disputes. Such an act is necessary due to the absence of any provision under current Alabama law to resolve these disputes. Under Alabama's current Uniform Guardianship and Protective Proceedings Act, Alabama's courts may establish jurisdiction and continue to exercise jurisdiction so long as the individual over whom guardianship or conservatorship is sought is present in the state or, in the case of conservatorships, so long as there is property of the protected person's estate in Alabama. (fn1) However, the current provisions of the Alabama Code do not specifically address what happens when incapacitated persons are relocated from one state to another in an attempt to gain a more favorable forum, to have another chance at litigating guardianship and conservatorship issues, or to gain control over the protected person's assets. Nor does current Alabama law provide specific remedies when a protected person is removed from Alabama's jurisdiction and proceedings are filed elsewhere.

To address these issues, the Alabama Law Institute established and convened a drafting committee in late 2007 to review and consider the Uniform Guardianship and Protective Proceedings Jurisdiction Act. After nearly 24 months of work, the proposed UGPPJA was presented to the Alabama Legislature, sponsored by Representative Tammy Irons in the Alabama House of Representatives and by senators Arthur Orr and Ted Little in the Alabama Senate. Both houses passed House Bill 114. The Alabama Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (fn2) was signed into law by Governor Bob Riley on April 22, 2010, to become effective January 1, 2011. The Act sets minimum standards for the acquisition of jurisdiction, continuation of jurisdiction and resolution of interstate jurisdictional disputes between courts.

This article will explain the Act's genesis, its basic operation and the primary provisions of the Act. As an Act which defines the circumstances under which an Alabama probate court may take jurisdiction and which sets the limits of that jurisdiction, the UGPPJA fundamentally changes the process by which jurisdiction over guardianship and protective proceedings is determined and, therefore, merits close examination by those practicing in this area. This article provides a starting point for closer study and examination of the Act.

The Act's Genesis: Uniform Child Custody Jurisdication Laws

The Uniform Guardianship and Protective Proceedings Jurisdiction Act was drafted by a committee of the Uniform Laws Commission and presented for final approval to the 2007 Annual Meeting of the National Conference of Commissioners on Uniform State Laws (NCCUSL). (fn3) The Uniform Act, upon which Alabama's Act is based, derives its guiding operational principles from the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (fn4) Prior to the adoption of the UCCJEA (and its predecessor, the UCCJA), similar juris-dictional problems frequently occurred in child custody determinations. Parents in the midst of custody disputes commonly relocated to other states in an attempt to find a more favorable forum, to make litigation of the issues more difficult for the opposing party, to discourage visitation (and thereby prejudice the other party's case), and to gain a second chance at litigating issues which were perhaps lost in the original jurisdiction.

Because the jurisdictional rules in existence prior to the UCCJA allowed courts in more than one state to properly exercise jurisdiction, parties were able to engage in forum shopping for the most favorable jurisdiction. The passage of the UCCJEA, however, set limits on the exercise of jurisdiction and provided courts with a procedure to encourage and require communication, cooperation and resolution of interstate child custody jurisdiction disputes. (fn5) In light of the success of the UCCJEA and the similar issues raised by interstate guardianship and conservatorship disputes, it is not surprising that the drafters of the Uniform Act modeled the first two articles of the UGPPJA upon the similar provisions of the UCCJEA. (fn6)

As a result, attorneys practicing in the family law area will likely be familiar with the terminology of the UGPPJA, which establishes definitions and jurisdictional prerequisites very similar to the UCCJEA. As of the effective date of the Act, jurisdiction of adult guardianship and conservatorship proceedings filed in the...