By Kathryn E. Nekola, Attorney, SW&L Attorneys
In the Red River Valley, it is common for close family and friends to live on opposite sides of the North Dakota-Minnesota state line. Generally, this situation is problem-free since it’s neither difficult nor time-consuming to move between the states. Yet problems may arise when a family member in one state becomes concerned about the welfare of a family member in the other state to the extent they need to ask the court to establish a guardianship, a conservatorship, or both. This is especially true if the court-appointed guardian later determines it is in the best interest of the person subject to guardianship or conservatorship to relocate from their state of residence to another state. At that time, the guardian and conservator will need to decide if the guardianship and conservatorship need to be transferred to the new state of residence. The answer tends to be yes if the relocation is intended to be long-term and the guardianship and conservatorship are still necessary.
Guardianships and Conservatorships
Guardianships and conservatorships are court processes where a state district court judge or judicial referee decides an adult is incapacitated and unable to make responsible personal decisions and/or manage their property and financial affairs. After a person is found to be incapacitated, usually due to a mental or physical health condition or a substance abuse crisis, the court will appoint a guardian, a conservator, or both.
The roles of the guardian and conservator are different. The court-appointed guardian will have certain decision-making authority over the person subject to guardianship. This may include the authority to make medical, legal, residential, educational, and vocational decisions. For example, the guardian may decide where the person subject to guardianship lives and what types of medical treatments they receive.
However, the court-appointed conservator makes financial decisions for the person subject to conservatorship. They have an obligation to manage, preserve, and, if necessary, dispose of the estate of the person subject to conservatorship. A conservator typically has the authority to enter into contracts, pay bills, invest assets, and make other financial decisions.
In both a guardianship and a conservatorship, the decision-making authority of the guardian or conservator may be restricted by state law or a court order. Additionally, some decisions may require prior approval from the court and all decisions must be in the best interests of the person subject to guardianship or conservatorship.
Transferring Guardianships and Conservatorships
If the person subject to guardianship or conservatorship relocates from their state of residence to another state for any reason, their guardian and/or conservator should undertake the process of transferring the guardianship and/or conservatorship to the new state of residence. This process can be broken down into five main steps.
Step One: File a Petition for Transfer with the Court in the Original Jurisdiction
Starting in the original jurisdiction, the guardian or conservator petitions the court to transfer the guardianship or conservatorship to the new jurisdiction. They must also provide notice of the petition to certain people, including the person subject to the guardianship or conservatorship and their spouse and adult children.
After the court provides an opportunity for a hearing to be held on the petition, a provisional order granting the petition may be entered if:
- The court is satisfied the guardianship or conservatorship will be accepted by the court in the new jurisdiction;
- The person subject to the guardianship or conservatorship is physically present in or is reasonably expected to move permanently to the new jurisdiction;
- An objection has not been made establishing the transfer would be contrary to the best interests of the person subject to the guardianship or conservatorship; and
- Plans for care and services for the person subject to the guardianship or conservatorship in the new jurisdiction are determined to be reasonable and sufficient
If granted, the provisional order will direct the guardian or conservator to file a petition in the new jurisdiction requesting acceptance of the transferred guardianship or conservatorship.
Step Two: File a Petition for the Acceptance of the Transfer with the Court in the New Jurisdiction
Next, the guardian or conservator petitions the court in the new jurisdiction to accept the transfer of the guardianship or conservatorship from the original jurisdiction. The petition must include a certified copy of the provisional order for transfer from the court in the original jurisdiction. Again, notice of the petition must be provided to certain people, including the person subject to the guardianship or conservatorship and their spouse and adult children.
The court in the new jurisdiction will offer an opportunity for a hearing before ruling on the petition. A provisional order granting the petition will most likely be issued unless an objection is made that establishes the transfer of the proceeding would be contrary to the best interests of the person subject to the guardianship or conservatorship or the guardian or conservator is ineligible to serve as guardian or conservator in the new jurisdiction.
Step Three: Obtain a Final Order for Transfer from the Court in the Original Jurisdiction
The provisional order issued by the court in the new jurisdiction will be provided to the court in the original jurisdiction, which will issue a final order confirming the transfer and terminating the guardianship or conservatorship in the original jurisdiction.
Step Four: Obtain a Final Order for Acceptance of the Transfer from the Court in the New Jurisdiction
The final order issued by the court in the original jurisdiction will be provided to the court in the new jurisdiction, which will issue a final order accepting the transfer and appointing the guardian or conservator.
Step Five: The Court in the New Jurisdiction Must Determine if the Guardianship and/or Conservatorship Needs to be Modified to Conform to the Laws of that Jurisdiction
Once the court in the new state has accepted the transfer, it will determine whether the guardianship or conservatorship needs to be modified to conform with their state laws.
Conclusions
Transferring a guardianship and/ or conservatorship involves a lot of back and forth between the original jurisdiction and the new jurisdiction that may become confusing. Many states, including North Dakota and Minnesota, have a variety of resources available online that may provide some clarity. However, in certain situations, it may become necessary (or just easier) to hire an attorney who is familiar with guardianships and conservatorships to help navigate the process.
If you have any questions regarding guardianships and conservatorships, please contact SW&L Attorneys!
Disclaimer: This article is provided for informational purposes only and is not intended as legal advice. It should not be used as a substitute for consulting with a qualified legal professional. No legal services are offered through this article, and no attorney-client relationship is established by reading it. Please consult with an attorney for advice on any specific legal issues you may be facing.
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