Virginia Enacts Uniform Adult Guardianship and Protective Proceedings Act

March 28, 2011

Gov. McDonnell signed Senate Bill 750 enacting the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the Act) on March 25, 2011, with conforming changes to accommodate Virginia law and existing statutes. Effective July 1, 2011, the Act provides much needed mechanisms for resolving multistate jurisdictional disputes which have been arising in adult guardianship and conservatorship litigation with increasing frequency. The Act is located in new Chapter 10.1 of title 37.2 of the Virginia Code (Va. Code. Ann. § 37.2-1031 et seq.).

In the event of a conflict, the Act provides a process for determining the state that has jurisdiction to appoint a guardian or conservator, and procedures for transferring a guardianship or conservatorship to another state. The goals are to save time and costs while protecting incapacitated persons and their property from potential abuse. The Act designates the individual’s “home state” as the state with primary jurisdiction, followed by a state where the individual has a “significant connection,” based on factors such as the location of the individual’s family, the length of time the individual has been present in the state, and the location of the individual’s property.

The Act also provides for registration and enforcement of orders from other states, and has several provisions that facilitate cooperation and communication with out-of-state courts in guardianship and conservatorship matters. In order to deal with emergency situations, the Act allows a court where an incapacitated person is physically present to take temporary protective actions including the appointment of a guardian and a conservator for property in the acting state. The Act also includes provisions allowing a court to decline to exercise, or limit its jurisdiction, where a person seeking to invoke jurisdiction has engaged in unjustifiable conduct.

Overall, the Act should reduce the uncertainty and costs associated with interstate conflicts in guardianship matters; remove incentives to engage in "forum shopping" that may be harmful to the incapacitated person; and provide welcome uniformity of the law across the enacting states.

The Act was previously adopted in 21 jurisdictions: the District of Columbia, Alaska, Washington, Oregon, Nevada, Utah, Colorado, Montana, Oklahoma, North Dakota, Minnesota, Illinois, Delaware, Iowa, Maryland, Arizona, Tennessee, Alabama, South Carolina, Nebraska and West Virginia. The Act is pending in Arkansas, Connecticut, Idaho, Indiana, Kentucky, Massachusetts, Mississippi, Missouri, New Mexico, Ohio, South Dakota and Vermont.

McGuireWoods Fiduciary Advisory Services

McGuireWoods’ Fiduciary Advisory Services and Private Wealth Services Teams stand ready to advise financial institutions and other clients about guardianship and conservatorship litigation, estate planning, tax, and fiduciary matters. Private Wealth Services is ranked by Chambers and Partners, the international rating service for lawyers, as one of two top-band private wealth services practice groups in the country. Please click here for a full listing of Fiduciary Advisory Services lawyers and their locations.

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