For those of you who have not seen the cinematic classic that is Legally Blonde, the above title is a nod to the main character’s most notorious line.
After Elle Woods successfully gains admission to an Ivy League law school, one of her classmates cannot fathom how she was admitted, and her response is the above phrase of incredulity.
After Wisconsin passed the Uniform Adult Guardianship Jurisdiction Act in 2018, many attorneys may have looked at the Transfer of Guardianship sections and had a similar reaction – for subchapter III contains just two relatively short sections:
In practice, however, there are factors outside of the statute that can affect the outcome.
Like many attorneys in our state who live close to a state border, I am licensed in two states (Minnesota and Wisconsin). Informed by my experience with the statute in both states, when explaining the process to my clients, I boil it down to four steps:
request provisional transfer from the transferring state;
request provisional acceptance from the accepting state;
request termination of transferring state’s guardianship; and
request formal appointment of guardian in accepting state.
Four steps. Seems straightforward, right?
Fortunately, for us and our clients, sometimes it can be. However, in most cases, there are multiple elements in each step that can lead to complications.
It is important from the outset to candidly review the process with clients, especially the length of time the entire transfer can take.
Below, I discuss several factors that may not be evident from reading the statute, but can contribute to the efficiency and success of transferring or accepting a guardianship under Chapter 53.
Tip #1: Find a (Another) Lawyer
If you are not licensed in both the transferring state and the accepting state, then you might need to find another lawyer for your client. Not only does this lawyer need to practice guardianship in their state, but for the sake of your client, they should also be someone you can work with efficiently. To find this individual, I would start by utilizing one of the resources that led you here to the Elder Law and Special Needs Section. If you need to utilize an elder law attorney in a particular state, chances are one of your colleagues has as well.
Tip #2: Review Both State’s Transfer Statutes
Whether you are representing the client in the transferring or accepting state, it is important to know the requirements of each state’s transfer statute. Since the Uniform Adult Guardianship Jurisdiction Act is a uniform act, in most cases the statutes will look almost identical. However, in many states, such as Wisconsin, there are some slight but important differences.
Knowing the other state’s requirements is important in drafting your state’s documents. For example, if you are transferring a guardianship to another state, and there is specific language required in the provisional order to transfer guardianship to another state from the accepting state’s statute, then it is incumbent upon you to ensure your order meets the requirements of the accepting state. Hopefully, the attorney from the other state will alert you to this issue. However, if they don’t, you can save the court’s and your client’s time if you catch it before submitting your proposed order.
Caveat: Understand Wisconsin’s Deviations from the Uniform Statute
While we are on the discussion of differences from the proposed Uniform Act, I think it is important to take a moment to discuss two of Wisconsin’s notable additions.
First: Before accepting a guardianship from another state, section 53.32(1) requires a statement from the guardian to accompany the proposed order, which is not required in the Uniform Act:
“The petition shall also include a proposed order specifying the powers to be granted in this state and a sworn statement that, to the best of the petitioner's knowledge, the proposed order is consistent with the authority granted to the guardian in the other state.”
Second: In both transferring and accepting a guardianship, the Wisconsin statute allows the court to appoint a guardian ad litem (GAL) at any time during the process, to ensure the best interests of the ward are represented. In my experience, it is better to confirm the court’s intention to appoint a GAL when you file your initial petition. An appointment early in the process allows the GAL time to complete their report and avoids any delays later.
Tip #3: Think Ahead
The transfer statute allows each court two different opportunities to review the transfer and acceptance requests, which could potentially, although unlikely, result in four different hearings. Therefore, finding efficiencies can help reduce the overall time of the process.
Most state’s transfer statutes require certified orders from the other state to be filed with the Petition to Provisional Accept or the Petition to Terminate the Guardianship. Therefore, including a request and payment for certification upon the judge’s signature with your initial filing can cut down on the transition time.
Additionally, having your petitions drafted while waiting for the other state to complete their step in the process, is also helpful in shortening the timeframe. Once you receive the other state’s order, you can quickly add the details to your petition and arrange for your client’s signature.
Tip #4: Beyond the Guardianship: Confirm Public Programs and Services
As Elder Law attorneys many of us practice in areas outside of guardianship. Therefore, it is also incumbent upon us to ensure our client chooses a setting and state that meets the needs of the person under guardianship.
It is important to confirm the availability of any needed Medicaid and housing services for the ward in the accepting state, prior to petitioning for transfer.
Conclusion: It’s All About the Client
While the incredulity of Elle Woods may not accurately describe transferring guardianship under the Uniform Adult Jurisdiction Act, by understanding of both states’ processes and planning ahead, we can help guide our clients through this sometimes-intimidating process, while ensuring the person subject to guardianship is transferred to a setting that best meets their needs.
This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.