In General Elder Law, Guardianship

They've stolen grandma - now what should we do? : louisiana's adoption of the uagppjaWhile the above question may sound like the name of the latest hit comedy, in reality, elderly individuals are removed from their home and taken to other states without their consent all the time. Until the recent adoption of the Louisiana Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), Louisiana courts have not been able to effectively determine the fate of these individuals. However, on August, 1, 2016, the UAGPPJA will go into effect and will allow our state, like 33 other states before us, to better determine which court has jurisdiction in guardianship cases like these.

Known in Louisiana law as an interdiction, a guardianship can be basically described as a lawsuit filed against a person to prove that the person is unable to take care of his or her person or finances. If a judge determines that an interdiction is necessary, then a curator (Louisiana’s name for a guardian) will be appointed to attend to these responsibilities. The interdiction process is usually expensive, involving court costs, the fees of at least two attorneys, and the fees of a medical expert appointed by the court. If the interdiction is contested, it can be even more costly and lengthy. Anyone over the age of 18 may be interdicted due to incapacity caused by a life-long disability, a tragic accident, or age-related dementia.

Adopting the UAGPPJA does little to alter current Louisiana law regarding how an interdiction is obtained. What it does affect is which state has the right to determine issues regarding interdicted persons. Prior to the adoption of this law, someone could remove an interdicted loved one from their home, move them to another state, and file a lawsuit in the new state to change the guardian/curator to themselves. In these situations, it was sometimes unknown whether the court in the old state or the court in the new state had authority to make those changes. Unfortunately, some families have spent years in multiple courts trying to settle these cases, often fighting over things that the interdicted person never would have wanted to happen.

The UAGPPJA, which was created in 2007 by the National Conference of Commissioners on Uniform State Laws, seeks to address these issues by solving the problem of which court has jurisdiction over cases of guardianship involving multiple jurisdictions. It uses three main factors to determine which state’s court has primary jurisdiction. First priority is given to the protected individual’s “home state” (in which the interdicted person was physically present for at least six consecutive months immediately before the proceeding began). Second priority is given to “significant-connection states” (which may include the location of family members, the location of prior residences of any significant period of time, or where the protected individual filed tax returns, etc.). When a case arises in which a person does not have a “home state” or “significant connection state” or when those states have declined jurisdiction, third priority is given to any other involved jurisdictions. The UAGPPJA does not affect similar cases involving minors. Instead, these cases fall under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has already been adopted in 49 states.

While not all Louisiana interdictions will be impacted by this new law, the UAGPPJ does offer further clarity where someone tries to remove an interdicted person from Louisiana and move them to another state or where they apply to a Louisiana court to change a guardianship issued in another state. It will allow the legal systems of involved states to more easily determine which court can make those changes, and it will ultimately bring us one step closer to truly protecting the best interests of those who cannot care for or protect themselves. With any interdiction, whether it is being filed initially or is being moved from one state to another, it is very important for families to consult with a qualified and experienced attorney before moving forward.


Linda-photo-largeThe information provided is not intended to be legal advice and does not constitute an attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation. Ms. Melancon has engaged in the practice of law in Ascension Parish for the last eighteen years. The primary focus of her practice is estate planning, probate, special needs planning and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.

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