A New Tool Against Granny-Snatching
A New Tool Against “Granny Snatching”
For years, those who might exploit, neglect, or otherwise endanger our most vulnerable victims—elderly, mentally handicapped, or mentally ill adults—have been able to escape the justice of North Carolina’s courts … simply by crossing state lines with the incompetent adult. Until now.
On June 30, Gov. McCrory signed into law Session Law 2016-72, which becomes effective December 1. With its enactment, North Carolina becomes the forty-fifth state to enact the Uniform Adult Guardianship and Protective Proceedings Act (“UAGPPA” or the “Act”), at long last embracing the act that was approved and recommended by the Uniform Law Commission back in 2007. (North Carolina’s own Susan Kelly Nichols, in fact, was one of about a dozen lawyers on that drafting committee.)
Savvy–sometime unwittingly so–litigants have often utilized flight across state lines to avoid the jurisdictional reach of courts. In cases involving adult incompetency matters, such flights (colloquially called “granny snatchings” by practitioners) typically were frustratingly successful, leaving disappointed North Carolina litigants with little recourse or remedy. (An author is reminded of an attorney in a significant Mecklenburg County guardianship action accusing opposing litigants of “a snatch and grab that would make Seal Team Six proud.”)
After a litigant or party had escaped beyond the jurisdictional reach of North Carolina’s courts, it could prove all but impossible to garner cooperation from other states’ authorities in honoring directives from North Carolina’s courts. Not only was North Carolina not a part of the UAGPPA compact; but our guardianship orders are typically signed by a Clerk or Assistant Clerk, an office often misunderstood by other states’ law enforcement or judicial authorities.
As a result—whether it was the exploitive son of a dementia-addled elderly resident, or the non-guardian mother of a disabled young adult collecting disability benefits—bad actors often found refuge from North Carolina’s courts simply by escaping the geographical boundaries of our borders. Disappointed North Carolina litigants would sometimes give up, perhaps lacking the financial resources to travel and retain new counsel in a foreign jurisdiction (oftentimes, having already expended resources on a North Carolina lawyer to bring the action that provoked the flight).
Even where the North Carolina litigant gives figurative chase, and commences judicial proceedings in a foreign state; other states would typically give no deference to a North Carolina ruling, allowing the fleeing-litigant another bite at the proverbial apple, in hopes of a more favorable outcome.
By embracing and enacting the UAGPPA, North Carolina joins the league of states giving deference, respect, and reciprocal enforcement of adult protective proceedings orders.
States have long wrestled with parallel issues in child custody proceedings. As far back as 1968, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction Act (“UCCJA”), which Congress followed in 1981 by the Parental Kidnapping Prevention Act (“PKPA”). In 1997, the Commission offered a new act—the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)—which combined aspects of the UCCJA and the PKPA into a comprehensive act that bound together forty-nine states (holdout Massachusetts introduced the act this year) in a compact that would provide for reciprocity in enforcement of child custody orders, and rules governing priority for jurisdiction between competing states.
The UAGPPA seeks to replicate the success of the UCCJEA, by incorporating and applying its principles to adult guardianship actions. North Carolina’s iteration of the UAGPPA will be grafted into our code as Chapter 35B. (Chapter 35A, covering guardianship, is not supplanted; but merely supplemented.) The Act’s stated public policy goals include “ensur[ing] that jurisdiction is located in one and only one state . . .” N.C.G.S. § 35B-1(d)(1), to “establish procedures for transferring guardianship from one state to another state when the incapacitated adult moves,” id. at § 35B-1(d)(2), and to “provide a uniform national system for registration and enforcement of out-of-state guardianship orders,” id. at § 35B-1(d)(3). The Act–mirroring the core components of the UCCJEA–seeks to implement these objectives in three primary realms: (1) recognition and enforcement, (2) transferability, and (3) properly determining proper jurisdiction.
Recognition and Enforcement. The UAGPPA establishes that guardianship orders entered in one state can be recognized and enforced in another state, just as the UCCJEA established for custody orders. Section 35B-12 of the Act provides: “a court that has appointed a [guardian] consistent with this Chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.” If a court, after subsequently accepting jurisdiction, determines that it has acquired jurisdiction based upon “unjustifiable conduct,” such Court may decline to exercise jurisdiction, continue to exercise jurisdiction (after considering the extent of the unjustifiable conduct), or exercise limited jurisdiction (such as fashioning an appropriate remedy to ensure the safety and well-being of a ward until a more proper forum accepts jurisdiction). N.C.G.S. § 35B-14.
The Act further implements these objectives by authorizing interstate cooperation between multiple states in connection with an adult guardianship or protective proceeding. Section 35B-6 authorizes one court to request another state’s court to offer assistance in the form of holding an evidentiary hearing, N.C.G.S. § 35B-6(a)(1), ordering production of testimony or evidence, id. at 35B-6(a)(2), ordering an evaluation (such as North Carolina’s multidisciplinary evaluation), id. at 35B-6(a)(3), ordering an investigation of a person involved in a proceeding, id. at 35B-6(a)(4), issuing an order necessary to “assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person,” id. at 35B-6(a)(6), or issuing an order authorizing the release of certain documentary evidence critical to investigation of such a case (e.g., medical, financial, or criminal information), id. at 35B-6(a)(7). The breadth of these resources alone is staggering, including the notion of a foreign court being empowered to “order any appropriate investigation” of a party to a proceeding, or compelling an out-of-state person to appear before North Carolina’s courts for a hearing, show cause order, or other matter.
Transferability. Like its model–the UCCJEA–the UAGPPA ensures that guardianship cases can be efficiently transferred from one state to another under appropriate circumstances. Section 35B-17(a) permits a guardian¾and interestingly, only the guardian (not a ward or other interested party)¾to petition the supervising court to transfer the guardianship to another state. Notice must be provided to all parties entitled to notice under an initial adjudication proceeding, see N.C.G.S. § 35B-17(b), and any party (here, including the ward or any interested party) may request a hearing be conducted on the motion, see N.C.G.S. § 35B-17(c). In a contested proceeding, prior to authorizing the initiation of a transfer, the supervising (transferor) Court must find that the transferee state’s court would likely accept the transfer and that each of the following are applicable: (1) that the ward is already located in the transferee state or is reasonably expected to move permanently to such other state, (2) that no objection has been made or an objecting party has not established “that the transfer would be contrary to the interest of the incapacitated person” (a burden of proof is not prescribed), and (3) that plans for care and services in the transferee state are “reasonable and sufficient,” N.C.G.S. § 35B-17(d).
If all such findings are made, the supervising court will enter a provisional order authorizing the transfer, contingent upon an order accepting the transfer from the transferee state (which must be upon petition by the guardian in that state). N.C.G.S. § 35B-17(g). The petition in the transferee state must also be served upon all interested parties, N.C.G.S. § 35B-18(b), and such petition must include a certified copy of the provisional order from the original state authorizing the transfer. Such a petition in the transferee state is also subject to the same hearing opportunities available in the transferor state. (In essence, an objecting party would have two opportunities to be heard in opposition to such transfer.) Cf. N.C.G.S. § 35B-18(c).
Determining Initial Jurisdiction. Finally, the UAGPPA provides a new standard for establishing jurisdiction over an adult guardianship or protective proceeding. Presently, the existing statute (at times, confusingly) appears to conflate the concepts of jurisdiction and venue. Section 35A-1103 of the existing guardianship chapter–entitled “Jurisdiction; Venue”–provides simply that clerks have original (subject matter) jurisdiction, and addresses bases for venue (the familiar “residence, domicile, or inpatient in a facility” standards). Because these bases are listed in a subsection regarding venue, practitioners have long assumed that the general bases for personal jurisdiction (as compared to venue) are those as in any civil action. The UAGPPA seems to assume similarly, as it specifically supplants the bases of jurisdiction in N.C.G.S. § 1-75.4(1) (“local presence or status” subsection in North Carolina’s general “personal jurisdiction” statute), without making any mention of N.C.G.S. § 35A-1103. See N.C.G.S. § 35B-10.
In any event, the new statute provides its own exclusive bases for the exercise of jurisdiction over a respondent or incompetent adult. The Act authorizes jurisdiction only if: (1) North Carolina is the respondent’s “home state,” N.C.G.S. § 35B-10(1); (2) the respondent does not have a “home state” or the potential “home state” has declined to exercise jurisdiction, N.C.G.S. § 35B-10(2)(a.); (3) if the respondent’s “home state” is not North Carolina, that no competing petition is filed in the home state or another “significant contact” state, and no party objects to the hearing in the forum state, N.C.G.S. § 35B-10(2)(c.). The “objection” subsection grants any party “required to be notified of the proceeding” standing to file such objection; and if such objection is made, the Act provides that jurisdiction shall be declined by the forum state (there is no recourse for the Court to entertain and overrule such objection).
The use of the term “home state” (instead of the more familiar “residence” or “domicile,” with all their attendant case law) would appear to have the opportunity to create some ambiguity and confusion, but the Act provides a specific definition: “the state in which the respondent was present, including any period of temporary absence, for at least six consecutive months immediately before the filing of the petition” (or if none, the state in which the respondent was present for a period of six consecutive months that terminated any time within six months of the filing of the petition). See N.C.G.S. § 35B-8(a)(2).
The Act does, however, afford North Carolina the opportunity to assert “special jurisdiction” (when jurisdiction is not generally authorized under N.C.G.S. § 35B-10), to appoint an emergency guardian for a period of ninety days. (Future legislative action may be advisable, to align North Carolina’s interim guardian concept, which can exist for forty-five days and an additional forty-five-day extension, cf. N.C.G.S. § 35A-1114, with this notion of an “emergency guardian” under Chapter 35B. Although Section 35A’s “interim guardian” provision will, necessarily, apply now only when North Carolina is the state with principal jurisdiction, while the “emergency special jurisdiction” will apply for a respondent located here but with a different home state, it may still prove advisable–in practice–to align the standards and processes.)
The standard for an “emergency,” defined in N.C.G.S. § 35B-8(a)(1), is roughly approximate to the present familiar standard for the appointment of an interim guardian under Chapter 35A. Specifically, “emergency” is defined in Article 2 of Chapter 35B as “[a] circumstance that likely will result in substantial harm to the respondent’s health, safety, or welfare, and for which the appointment of a guardian of the person is necessary because no other person has authority and is willing to act on the respondent’s behalf.” Note that the Chapter 35B emergency standard does not specifically address a risk of harm to the respondent’s estate, cf. N.C.G.S. § 35A-1114(b)(2)(b.) (“reasonably appears to be an imminent or foreseeable risk of harm to the respondent’s estate that requires immediate intervention in order to respect the respondent’s interest”); however, one may safely assume that the “welfare” standard in Section 35B-8(a)(1) would incorporate such a threat (and furthermore, Section 35B-11(a)(3) specifically contemplates the appointment of an emergency guardian of the estate).
When such special jurisdiction is authorized, the forum court may not only appoint an emergency guardian, N.C.G.S. § 35B-11(a)(1), but may also issue a protective order concerning “real or tangible personal property located in this State,” id. at § 35B-11(a)(2), or even domesticate a foreign guardian’s authority by appointing such guardian emergency authority to act in North Carolina, id. at § 35B-11(a)(3). Curiously, the authority of the Court to enter a protective order does not specifically extend to the most vulnerable property (intangible personal property)¾presumably because a guardian appointed under Section 35B-11(a)(1) would have such inherent authority.
Finally, returning to the concept of general jurisdiction (rather than emergency special jurisdiction), a Court having such jurisdiction may nonetheless decline to exercise such authority “if it determines that a court of another state is a more appropriate forum.” N.C.G.S. § 35B-13(a). Factors to be considered include the expressed wishes of the respondent, id. at § 35B-13(c)(1), whether any abuse or neglect has occurred in North Carolina and whether this state is most equipped to protect the ward from such, id. at § 35B-13(c)(2), the length of time the respondent has been in North Carolina and the distance of North Carolina (necessarily the “home state” in this scenario) from the state where the respondent is actually located, id. at § 35B-13(c)(3)-(4), the North Carolina court’s familiarity with the facts and issues and ability to expeditiously provide redress, id. at § 35B-13(c)(7)-(8), and the North Carolina court’s ability to monitor any guardian it appoints, id. at § 35B-13(c)(9). Furthermore, a North Carolina court otherwise having jurisdiction may decline to exercise it if the court finds that jurisdiction was acquired by “unjustifiable conduct” of a party (presumably, the “snatching” of a person and bringing them to North Carolina). N.C.G.S. § 35B-14. A North Carolina court can also decline jurisdiction contingent upon the filing of a protective proceeding or guardianship in another proper state. N.C.G.S. § 35B-14(b).
With its adoption of the UAGPPA, North Carolina joins a compact of forty-four other states that can help ensure continuity and a fair application of justice in cases of abuse, neglect, or exploitation of elderly or disabled persons. The Act will come as a relief to practitioners in the guardianship space, who have–for too long–seen justice delayed or denied by “granny snatchings.” (If you’re wondering, “‘Seal Team Six’ snatch and grabbers” can still find refuge in Florida, Texas, Wisconsin, Michigan, and Kansas.)
* The foregoing article originally ran in The Will & The Way, published by the Estate Planning & Fiduciary Law Section of the North Carolina State Bar; Section 36, No. 1; October 2016.