Grant County Department of Social Services v. Unified Board of Grant & Iowa Counties

2005 WI 106, 700 N.W.2d 863, 283 Wis. 2d 258, 2005 Wisc. LEXIS 343

• Court: Wisconsin Supreme Court
• Decided: July 7, 2005
• Docket: 2003AP634
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Unified Board of Grant and Iowa Counties, seeks review of a decision of the court of appeals reversing a circuit court order that had dismissed a petition for guardianship and protective placement filed by Grant County Department of Social Services.¹ The court of appeals examined Wis. Stat. § 55.06(3)(c) (2001-02), which requires a petition be filed in the county of residence of the person to be protected.² The petitioner asserts that the court of appeals erred in concluding the statute is unconstitutional in application because it violates the right to interstate travel.

¶ 2. This case presents an opportunity to examine some of the current problems associated with the transfer of interstate guardianships. Based on principles of comity and the orderly administration of justice, we set forth standards for Wisconsin courts to follow when confronted with the transfer of interstate guardianships. These standards will protect the integrity of the original court's determination of what is in the best interests of the ward. Accordingly, we vacate the decision of the court of appeals and remand to the circuit court for the application of the standards set forth here.³

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¶ 3. The facts in this case are brief and undisputed. Jane E.E is a 47-year-old woman who suffers from Wernicke's encephalopathy.⁴ Due to this condition, she is substantially incapable of managing her personal finances and property and cannot care for herself. Jane currently resides at the Galena Stauss Nursing Home in Galena, Illinois, where she has lived the past five years. She was placed there pursuant to an order of the court in Jo Daviess County, Illinois. Jane's guardian is her sister, Deborah V

¶ 4. Many of Jane's relatives live in Grant County, Wisconsin, just across the Illinois border. They wanted to move Jane to Southwest Health Center Nursing Home, a private facility in Cuba City, Wisconsin. Through its corporation counsel, the Grant County Department of Social Services (hereinafter "Grant County") petitioned for guardianship and protective placement at Southwest Health Center Nursing Home. The petition nominated Deborah V to remain as Jane's guardian.

¶ 5. As part of its proceedings, the circuit court ordered the Unified Board of Grant and Iowa Counties (hereinafter "Unified") to make a comprehensive evaluation of Jane.⁵ Instead, Unified moved to dismiss the guardianship and protective placement for lack of competency of the court to proceed. It maintained that Jane was a resident of Illinois and Wis. Stat. § 55.06(3)(c) required her to be a Wisconsin resident at the time of filing.⁶ The circuit court agreed with Unified and dismissed the matter based upon Jane's non-residency.

¶ 6. The court of appeals reversed the order of the circuit court. It determined that Wis. Stat. § 55.06(3)(c), as applied to Jane, violated her constitutional right to interstate travel. Grant County Dep't of Soc. Servs. v. Unified Bd. of Grant and Iowa Counties, 2004 WI App 153, ¶ 22, 275 Wis. 2d 680, 687 N.W.2d 72. In doing so, the court of appeals relied on Bethesda Lutheran Homes and Services Inc. v. Leean, 122 F.3d 443 (7th Cir. 1997), appeal after remand, 154 F.3d 716 (1998), which, although not binding on state courts, held under similar circumstances that Wis. Stat. § 55.06(3)(c) impeded the constitutional right to travel.

¶ 7. The Bethesda Lutheran court explained, "[s]ince anyone who is approved for protective placement is by definition incapable of living outside [a facility] it is unclear where in Wisconsin the applicant for admission to the [Wisconsin] facility is supposed to live while the placement is being processed." Id. at 446. Following this reasoning, the court of appeals concluded, "because Jane is incompetent and cannot first move to Wisconsin and have a petition for protective placement filed on her behalf, § 55.06(3)(c), as applied to Jane, unconstitutionally burdens her right to travel." Grant County, 275 Wis. 2d 680, ¶ 17. Unified subsequently petitioned this court for review.

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¶ 8. As noted above, this case presents an opportunity to examine some of the current problems associated with the transfer of interstate guardianships. We begin our discussion with a brief overview of the emergence of interstate guardianships. Next, we address some of the questions interstate guardianships raise and consider various responses of different jurisdictions. Then, we turn to the arguments of the parties in the present case. Finally, we set forth standards for Wisconsin courts to follow when confronted with interstate guardianships.

A

¶ 9. The fact that American society has become increasingly mobile should come as no surprise to most observers. Over 15 percent of Americans change their residence each year, with 3 percent of them moving to another state. Charlene D. Daniel & Paula L. Hannaford, Creating the "Portable" Guardianship: Legal and Practical Implications of Probate Court Cooperation in Interstate Guardianship Cases, 13 Quin-nipiac Prob. L.J. 351 (1999). While the vast majority of these movers are relatively young, nearly 5 percent of people age 65 and older also move each year. Id. at 352.

¶ 10. Likewise, it is well documented that American society is living longer than ever due to advancements in health, science, and medicine. Presently, individuals age 65 and older represent 12 percent of the U.S. population, up from 4 percent in 1900. Peggie R. Smith, Elder Care, Gender, and Work: The Work-Family Issue of the 21st Century, 25 Berkeley J. Emp. Lab. L. 351, 352 (2004). By 2030, that figure is expected to increase to 20 percent. Id.7 Along with this rise in the elderly population comes an increase in Alzheimer's, dementia, and other incapacitating diseases that interfere with the ability to live independently.

¶ 11. The convergence of these developments has significant implications for the administration of Wisconsin's guardianship system.⁸ As one commentator explained, " [frequently elderly parents choose their adult children as their primary caretakers. Therefore, in this age of geographic mobility, children often must make arrangements for their parents to relocate to the state where the children live." Ryan Vincent, As America Ages: Changing the Domicile of the Incompetent Challenges Diversity Jurisdiction, 43 Washburn L.J. 513 (Winter 2004). As a result, the number of interstate guardianships is likely to increase in Wisconsin as well as nationwide.⁹

B

¶ 12. With the increase of interstate guardian-ships comes a host of difficult questions. The questions surrounding the interstate transfer of guardianships are of vital importance to Wisconsin families and their loved ones. In many simple cases the conclusion is obvious: it is in the best interest of the ward to be near those who will love, care for, and comfort the ward. But not all cases are so easily resolved. Quite the contrary.

¶ 13. Some jurisdictional questions involving the interstate transfer of guardianship pose complex legal and procedural issues laden with serious public policy questions. What happens when the relatives are in different states and are fighting over which state most appropriately should exercise jurisdiction? What happens when the motives are not based on what is in the best interest of the ward, but rather on the fortune of the ward who has property in several states? Should wards be transferred to states for the purpose of being subject to more favorable "right to die" laws or assisted suicide legislation?

¶ 14. As case law from other jurisdictions demonstrates, courts have struggled mightily with problems associated with interstate guardianships. Indeed, "nowhere are the legal issues associated with interstate guardianships more difficult to resolve than in cases that raise the question of a court's jurisdiction to establish a guardianship or to determine which court should hear a guardianship matter when multiple courts have jurisdiction." Daniel, Creating the "Portable" Guardianship, at 355. Three cases illustrate this point: Mack v. Mack; In re Guardianship of Margaret Enos; and In re Guardianship of Ralph DeCaigny. We consider each one in turn.

¶ 15. In Mack v. Mack, 618 A.2d 744 (Md. 1993), the Maryland court of appeals heard a dispute over the guardianship of a man left in a persistent vegetative state after an automobile accident. The man's wife was initially appointed guardian for her husband in Maryland. However, after moving to Florida, she sought a guardianship appointment from a Florida circuit court and a discharge from the Maryland guardianship order, which were both granted. Upon learning that she had petitioned the Florida court for permission to withhold nutrition and hydration for the man, the man's father filed a petition for appointment as guardian in Maryland. Thus, the court was faced with a jurisdictional question, stemming from an intrafamily conflict over the continuation of treatment for a loved one.

¶ 16. The Maryland court of appeals concluded that "[t]he guardian's authority is not derived from the ward, but from the appointing court for which the guardian acts as agent, exercising those powers conferred by statute or by the court." Mack, 618 A.2d at 750. Therefore, the man's wife, simply by virtue of being his guardian, could not appear in a Florida court and consent to the exercise of jurisdiction over him. Id. The court of appeals noted that the man never lived in Florida, and that there was no evidence that he ever intended to live there. Id. at 751. Accordingly, it refused to afford full faith and credit to the Florida court judgment appointing the wife guardian. Id.

¶ 17. As commentators Charlene D. Daniel and Paula L. Hannaford explain, it is difficult to examine the jurisdictional question in Mack because the issue is so closely tied to the substantive question underlying the dispute: the appointment of a guardian who will act in the best interests of the ward. Daniel, Creating the "Portable Guardianship", at 358. They note that the court of appeals in Mack "conveniently glosses over" the fact that a Maryland court had discharged the previous guardianship, presumably because it recognized that Florida had jurisdiction. Id.

¶ 18. A more satisfying analysis of jurisdictional issues can be found in In re Guardianship of Margaret Enos, 670 N.E.2d 967 (Mass. Ct. App. 1996), where the court considered and deferred to another court of competing jurisdiction. There, the Massachusetts court of appeals heard a guardianship petition filed by the daughter of a Florida woman who had transferred her mother from Florida to Massachusetts without the authorization of either a Florida court or the not-for-profit charitable corporation that had been appointed guardian of the mother. In her petition, the daughter argued, among other things, that the Florida guardianship decision was not entitled to full faith and credit in Massachusetts.

¶ 19. The Massachusetts court of appeals acknowledged that it was not obligated to grant full faith and credit to a foreign guardianship if the best interests of the ward required otherwise. Enos, 670 N.E.2d at 968. It concluded, however, that there was no reason for not granting full faith and credit given the evidence presented. Id. at 969. The court also emphasized that, regardless of the validity of the daughter's claims concerning the mother's alleged mistreatment, she needed to pursue her claims in Florida for reasons of full faith and credit, interstate comity, and the superior convenience of the forum. Id.

¶ 20. Finally, In re Guardianship of Ralph DeCaigny, No. C3-93-1269, 1994 Minn. App. LEXIS 126 (Minn. Ct. App. Feb. 1, 1994) is another case worth noting for the respect one state court afforded another. There, the Minnesota court of appeals considered whether a Minnesota circuit court had jurisdiction to remove two guardians appointed to the ward's person by a circuit court in New Mexico. The circuit court, which had previously appointed a Minnesota bank as conservator of the ward's property located within the state, determined that the out-of-state guardians had mismanaged the ward's funds, failed to make the necessary reports on the ward's finances, and improperly used the ward's property. After consulting with the New Mexico circuit court, the Minnesota circuit court ordered the removal of the New Mexico guardians.

¶ 21. Although the court of appeals lauded the comity and cooperation demonstrated by the two circuit courts, it felt compelled to reverse the removal order on grounds that Minnesota does not have jurisdiction to remove out-of-state guardians appointed by out-of-state courts. Daniel, Creating the "Portable" Guardianship, at 361 (citing DeCaigny, 1994 Minn. App. LEXIS 126 at 3). Accordingly, the court of appeals concluded that any removal of the appointment of the guardians from New Mexico was in error. Id.

¶ 22. As these three cases demonstrate, jurisdictional questions in the context of interstate guardianship cases can present thorny problems for courts. This is especially true in cases like Mack where jurisdiction is used as a procedural vehicle to advance the parties' substantive claims concerning the continuation of treatment or the right to die. However, as the cases of Enos and DeCaigny reveal, courts can and do endeavor to afford respect for the proceedings of another legal system. Encouraging cooperation and consideration among courts of different jurisdictions is critical to furthering the dignity of the judicial system and promoting the orderly administration of justice.

C

¶ 23. With the foregoing background in mind, we turn to the arguments of the parties in the present case. Here, Unified asserts that Wis. Stat. § 55.06(3)(c) is constitutional because it does not burden Jane's right to travel and is a bona fide residency requirement. In the alternative, it maintains that even if Jane's right to travel is burdened, such a burden is justified by the fiscal impact that counties and the State would suffer by providing services to nonresidents. Grant County, meanwhile, submits that Wis. Stat. § 55.06(3)(c) improperly infringes on Jane's constitutional right to interstate travel. It declares that the statute acts as a total bar to travel for Jane and others similarly situated.

¶ 24. Lost in these arguments, of course, is the court in Jo Daviess County, which is charged with the responsibility of ensuring Jane's safety and well-being and has already determined that placement at Galena Stauss Nursing Home is in her best interests. If there is to be any comity between Illinois and Wisconsin, the analysis should begin there.¹⁰

¶ 25. Comity is based on respect for the proceedings of another system of government. Teague v. Bad River Chippewa Indians, 2003 WI 118, 265 Wis. 2d 64, ¶ 69, 665 N.W.2d 899 (Abrahamson, C.J., concurring for a majority of the court). The doctrine "is neither a mátter of absolute obligation nor of mere courtesy and good will, but is recognition which one state allows within its territory to legislative, executive, or judicial acts of another, having due regard to duty and convenience and to rights of its own citizens." Id. (citations omitted).

¶ 26. Given today's aging and mobile society, we believe that interstate cooperation between courts is vital. Such cooperation promotes confidence in the judicial system, and enhances the efficient use of judicial resources. Indeed, a little cooperation in the present case might have solved the problem and avoided the constitutional issue altogether.

¶ 27. The problem in this case and others like it is that current laws are generally insufficient to assist courts and litigants in resolving multi-jurisdictional issues stemming from interstate guardianships. To be sure, there are exceptions.¹¹ For example, Indiana's code expressly extends the extraterritorial reach of its guardians and gives an Indiana guardian the authority to place the ward in another state, with court approval. Ind. Code § 29-3-9-2 (2003). Moreover, Kansas sets forth a highly detailed process to petition the court to give full faith and credit to the prior adjudication, appoint a guardian or conservator, and terminate the other state's proceedings. Kan. Stat. Ann. § 59-3061 (2003). However, neither Wisconsin nor Illinois has comparable provisions.

¶ 28. We strongly encourage the legislature to address this issue. In facilitating this end, we direct its attention to the work of both the National College of Probate Judges and the National Conference of Commissioners on Uniform State Laws referenced later in this opinion. However, in the absence of legislative guidance, we set forth standards for Wisconsin courts to follow when confronting cases associated with the interstate transfer of guardianships.

D

¶ 29. We determine that principles of comity should be applied in this case. In Teague, 265 Wis. 2d 64, this court applied principles of comity to resolve a dispute between two courts of competing jurisdiction. There, a tribal court and a circuit court exercised jurisdiction over the same dispute between Teague and the Bad River Band about termination of Teague's employment with the tribe. The two courts had reached opposite results, and each party wanted this court to give effect to the judgment in its favor.

¶ 30. To resolve the matter, and provide guidance for future cases, we set forth a list of factors for state and tribal courts to consider when determining "which of two courts should proceed to judgment and which court should abstain and cede its jurisdiction." Id., ¶ 71. (Abrahamson, C.J., concurring for a majority of the court). The factors stemmed from a number of sources discussing comity, allocation of jurisdiction, and enforcement of judgment. Id., ¶ 71 n.15.

¶ 31. Courts must work together in respect and cooperation to further the dignity of the judicial system and to promote the orderly administration of justice. Accordingly, as in Teague, we set forth standards for Wisconsin courts to follow when confronted with interstate guardianships.¹² These standards, steeped in a spirit of comity, promote the orderly administration of justice. The standards we provide are not made out of whole cloth. Rather, they stem from an addendum to the National Probate Court Standards regarding the subject of transfer of interstate guardianships.¹³ The hallmarks of these standards are communication and notice. First, we briefly explain the background of the addendum. Then, we set forth its standards and relevant commentary.

¶ 32. In the absence of any widely accepted model of interstate communication for courts of probate jurisdiction, the National College of Probate Judges (NCPJ)¹⁴ initiated a research project with the National Center for State Courts (NCSC) to study the incidence of interstate guardianships and to explore avenues for facilitating interstate communication and cooperation. Final Report of the NCPJ Advisory Committee on Interstate Guardianships, Presented to: National College of Probate Judges October 12, 1998, 1.

¶ 33. According to the study, difficulties of interstate guardianship arose most often in monitoring and enforcement, jurisdiction disputes, navigating the laws governing property management in other states, obtaining investigatory reports and testimony from persons located in other states, and communications with courts and attorneys in other states. Id. at 2-3. In response to these concerns, the Advisory Committee drafted five standards which address the following items: (1) Communication and Cooperation Between Courts; (2) Screening and Review of Petition; (3) Transfer of Guardianship; (4) Receipt and Acceptance of a Transferred Guardianship; and (5) Initial Hearing in the Court accepting the Transferred Guardianship. Id. at 4.

¶ 34. Central to the standards is the concept of "portability," the idea that guardianships should be able to be "exported" or "imported" from one state to another absent a showing of abuse of the guardianship. See National Probate Court Standard 3.5, Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, a Project of the National College of Probate Judges and the National Center for State Courts (hereinafter "National Probate Court Standards"). The drafters intended "to facilitate —and not impede unnecessarily the movement of [guardianships] across state lines" by requiring specific steps to be completed by the transferring and accepting courts. Id. They reasoned, "[standards of access to justice and the principle of comity require courts to remove those barriers that impede litigants' participation in the legal system even when that participation requires the engagement of court systems in different states." Id. We now set forth the National Probate Court Standards applicable to the present case, along with selected relevant commentary.

¶ 35. "STANDARD 3.5.1 COMMUNICATION AND COOPERATION BETWEEN COURTS. Probate courts in different jurisdictions and states should communicate and cooperate to resolve guardianship disputes and related matters. Working in consultation with appropriate groups and organizations, probate courts should develop and implement rules, codes and standards of ethics, and administrative procedures that encourage communication and cooperation between and among courts." National Probate Court Standard 3.5.1.

¶ 36. The Commentary to Standard 3.5.1 notes that this provision extends the requirement of independence and comity to a circuit court's relationship with courts in other jurisdictions and recognizes that the ends of justice are more likely to be met when courts communicate and cooperate to resolve guardianship matters that cross state lines. Id., cmt. The Commentary also emphasizes that in matters pertaining to the alleged incapacitated person's temporary residence or location in another state, as well as in matters in which two or more courts have jurisdiction, the courts should communicate among themselves to resolve any problems or disputes. Id.¹⁵

¶ 37. "STANDARD 3.5.3 TRANSFER OF GUARDIANSHIE (a) Upon receipt of proper notice of an intended transfer of a guardianship, and a satisfactory final report of the guardian, and in the absence of meritorious objections by interested persons, the probate court should transfer the guardianship to a foreign jurisdiction within a reasonable amount of time, (b) The ward and all interested persons should be served with proper notice of the intended transfer and be informed of their right to file objections and to request a hearing on the petition, (c) The final report of the guardian should contain sufficient information for the court to determine that the general plans for the ward and his or her assets in the foreign jurisdiction are reasonable and sufficient." National Probate Court Standard 3.5.3.

¶ 38. The Commentary to Standard 3.5.3 notes that the Standard is consistent with and extends to interstate guardianships the provisions for reports by a guardian, and state requirements for annual reports and accountings by the guardian. Id., cmt. Its intent is to facilitate the transfer of guardianships to another state in cases in which the court is satisfied that the guardianship is valid and that the guardians have performed their duties properly in the interests of the ward for the duration of their appointment. Id. The Standard is based on the presumption that most guardians are acting in the interest of the ward and that the notice and reporting requirements, and the opportunity to bring objections to the transfer to the attention of the court, are sufficient checks on the appropriateness of the transfer. Id.¹⁶

¶ 39. The Commentary further notes that, in general, receiving courts should allow the guardianship to be "imported," giving full faith and credit to the terms and powers of foreign guardianship orders. Id. However, enforcement and necessary administrative changes (e.g., bond requirements, periodic reporting requirements, appointment of guardian ad litem or court visitor) of the guardianship may be made to bring the guardianship into compliance with the requirements of the receiving jurisdiction. Id. Ideally, those changes should be made in accordance with the receiving court's monitoring and review schedule and requirements. Id. However, courts may choose to have an expedited review hearing upon receipt and acceptance of the foreign guardianship. Id. Cooperation and communication, and a proper distribution of responsibilities among states, should facilitate the movement of guardianships and should be such that the parties would see it in their interests to comply with the requirements. Id.

¶ 40. In addition, the Commentary recognizes that, as a matter of good practice, guardians should always provide the court, the ward, and all interested persons advance notice of an intended transfer of the guardianship or movement of the ward or property from the court's jurisdiction. Id. Guardians should be familiar with the laws and requirements of the new jurisdiction. Id. No hearing on the transfer is necessary unless scheduled by the court sua sponte or requested by the ward or interested persons named in the original petition. However, the ward and all interested persons should be informed of their right to request a hearing. Id. After all, the intent is not to restrict freedom, or to bar or restrict travel or changes in residence, but to encourage the best possible treatment of the ward according to their best interests. Id.

¶ 41. Finally, the Commentary states that, in general, a guardianship or a ward or the ward's property may be moved to another jurisdiction with the approval of the sending court. Id¹⁷ The court's approval should be conditioned upon certain requirements including the absence of pending disciplinary actions against the guardian, approval by the court of a final financial accounting, and a satisfactory final report of the condition of the ward. Id. Bond or other security requirements imposed by the exporting court should be discharged only after a new bond, if required, has been imposed by the receiving court. Id. Debtor issues also may need to be dealt with in accordance with existing state laws. Id.

¶ 42. "STANDARD 3.5.4 RECEIPT AND ACCEPTANCE OF A TRANSFERRED GUARDIANSHIP Upon receipt of a properly executed request for a transfer of a guardianship certified by a foreign jurisdiction, and subject to the provisions of Standard 3.5.5, the probate court should recognize the appointment and powers of the guardian and accept the guardianship under the terms as specified in the transferred guardianship order. Acceptance of the transferred guardianship can be made without a formal hearing unless one is requested by the court sua sponte or by motion of the ward or by any interested person named in the transfer documents. The court should notify the foreign court of its receipt and acceptance of the transfer." National Probate Court Standard 3.5.4.

¶ 43. The Commentaiy to Standard 3.5.4 provides that, subject to the provisions of the Standard, a court should recognize and accept the terms of a foreign guardianship that has been transferred with the approval of the exporting court. Id., cmt. The receiving court should notify the exporting court and acknowledge that it has accepted the guardianship. Id. Receipt of this notice can serve as the basis for the exporting court's termination of its guardianship. Id. Consistent with the Standard, a court should cooperate with the foreign court to facilitate the orderly transfer of the guardianship. Id. To coordinate the transfer, it can delay the effective date of its acceptance of the transfer, make its acceptance contingent upon the discharge of the guardian by the foreign court, recognize concurrent jurisdiction over the guardianship, or make other arrangements in the interests of the parties or of justice. Id.

¶ 44. "STANDARD 3.5.5 INITIAL HEARING IN THE COURT ACCEPTING THE TRANSFERRED GUARDIANSHIP (a) No later than ninety (90) days after acceptance of a transfer of guardianship, the probate court should conduct a review hearing of the guardianship during which it may modify the administrative procedures or requirements of the guardianship in accordance with local and state laws and procedures, (b) Unless a change in the ward's circumstances warrants otherwise, the probate court should give effect to the determination of incapacity and recognize the appointment of the guardian and his or her duties, powers and responsibilities as specified in the transferred guardianship." National Probate Court Standard 3.5.5.

¶ 45. The Commentary to Standard 3.5.5 provides that the court should schedule a review hearing within 60 days of receipt of a foreign guardianship. Id., cmt. The review hearing allows the court to inform the ward and guardian of any administrative changes in the guardianship (e.g., bond requirements or reporting procedures) that are necessary to bring the foreign guardianship into compliance with state or local law. Id. Unless requested to do otherwise by the ward, the guardian, or an interested person because of a change of circumstances, the court should give full faith and credit to the terms of the existing guardianship concerning the rights, powers, and responsibilities of the guardian. Id.

¶ 46. We recognize that the standards will not solve every problem associated with interstate guard-ianships.¹⁸ However, in the spirit of comity and to promote the orderly administration of justice, they are to be employed for the interstate transfer of guardian-ships. These standards will help Wisconsin courts facilitate the geographic mobility of those individuals that guardianship orders were designed to protect. In the present case, they will protect the integrity of the original court's determination of what is in the best interests of Jane, while recognizing her ability to change residence as expressed through a guardian.

¶ 47. Accordingly, on remand, Grant County should petition the court in Jo Daviess County for transfer of Jane's guardianship. Likewise, it should petition the court in Grant County for the receipt and acceptance of Jane's guardianship.¹⁹ During this process, Grant County shall serve Jane and all interested persons with proper notice of the intended transfer and inform them of their right to file objections and to request a hearing on the petition. This requirement is important to prevent the transfer of a guardianship for inappropriate purposes.

¶ 48. Assuming that there are no objections and that the court in Jo Daviess County approves of the transfer, the court in Grant County should allow the guardianship to be "imported," giving full faith and credit to the terms and powers of the foreign guardianship order. Administrative changes of the guardianship may be necessary to bring the guardianship into compliance with the requirements of Wisconsin law. However, if these steps are completed, the court in Grant County will be able to place Jane at Southwest Health Center Nursing Home without hearing a new petition for protective placement. This will avoid the residency requirement of Wis. Stat. § 55.06(3)(c).

OFFICIAL WISCONSIN REPORTS Supreme Court

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¶ 49. In sum, this case presents an opportunity to examine some of the current problems associated with the transfer of interstate guardianships. Based on principles of comity and the orderly administration of justice, we have set forth standards for Wisconsin courts to follow when confronted with the transfer of interstate guardianships. These standards will protect the integrity of the original court's determination of what is in the best interests of the ward. Accordingly, we vacate the decision of the court of appeals and remand to the circuit court for the application of the standards set forth here.

By the Court. — The decision of the court of appeals is vacated and the cause is remanded to the circuit court.

¶ 50.

N. PATRICK CROOKS, J. (concurring).

PARTI.

¶ 51. I join the majority opinion and its adoption of standards for Wisconsin courts to follow when presented with cases involving the transfer of a guardianship from another state. As such, I agree that the decision of the court of appeals should be vacated, and that this case should be remanded to the circuit court for the application of those standards. I also join Section D of Justice Patience Drake Roggensack's concurrence/dissent, which states that Wis. Stat. § 55.06(3) (c) (2001-02) is constitutional as applied to Jane E.R

PART II.

¶ 52. I write separately to lend further support to her conclusion as to the constitutionality of Wis. Stat. (3)(c), and to distinguish the present case from Bethesda Lutheran Homes and Services, Inc. v. Leean, 122 F.3d 443 (7th Cir. 1997).¹

¶ 53. In Bethesda Lutheran, the federal court of appeals found Wis. Stat. § 55.06(3)(c) was unconstitutional. While I recognize that such a decision is not binding on this court, I feel that an analysis of the case is warranted, because the decision of the Wisconsin Court of Appeals relied on that holding in the present case. In Bethesda Lutheran, four nonresidents of Wisconsin filed a civil rights action under 42 U.S.C. § 1983 involving Bethesda Lutheran Homes, a private care facility located in Watertown, Wisconsin. That facility was one that provided care and treatment for the mentally retarded.² All four nonresident plaintiffs were retarded, with IQs between 10 and 34, and none was considered competent to manage his or her own affairs. Id. at 444. These plaintiffs alleged that that the residency requirement of § 55.06(3)(c) impeded their constitutional right to travel by preventing them from moving to the care facility from their current out-of-state homes or group homes.

¶ 54. The Seventh Circuit Court of Appeals concluded that the State of Wisconsin did not establish that there was a rational basis for the residence requirement in Wis. Stat. § 55.06(3)(c). The court held, specifically, that "no plausible justification for it has been suggested. The plausible justifications were not argued at all, and the implausible ones were abandoned at the end of oral argument." Id. at 447 (emphasis added). This statement resulted from the court's view that the State of Wisconsin had failed to provide a reasonable justification for the residence requirement. Notably, the court did not say that no plausible explanation for such a requirement existed; rather, the court stated that no plausible justification had even been proposed.

¶ 55. This case, however, is clearly distinguishable. The Unified Board of Grant and Iowa Counties (Unified) made plausible arguments, and provided testimony on the record, to justify the residence requirement in Wis. Stat. § 55.06(3)(c). It contended, unlike the State of Wisconsin in Bethesda Lutheran, that the fiscal concerns associated with the guardianship and protective placement of patients such as Jane E.E provides a rational justification for residence requirements. The financial burden on Iowa and Grant Counties was shown to be a significant one.

¶ 56. The record includes substantial evidence in that regard. During testimony at the hearing before the circuit court on the motion to dismiss, Neil Blackburn, the director of Unified Community Services of Grant and Iowa Counties, stated that Unified has a $860,000 annual cost for 21 individuals in community based residential facilities (CBRF). He noted that if a person needs to be moved from a nursing home to a CBRF that there is an obligation to provide such services.³ He

testified that the total expenditure, annually, for Unified Community Services is approximately $8,500,000. He stated that there are currently 76 protectively placed persons that Unified is responsible for, that about 60 Wisconsin residents are currently on Unified's waiting list for protective placement, and that there is no money available to help support those developmentally disabled individuals, since the agency annually has a deficit.

¶ 57. I am convinced that this record is sufficient to establish a rational justification for the residency requirement. I therefore agree that the statute is "rationally related to protecting and preserving the county's and the State's ability to provide services to its own bona fide residents in preference to those persons who reside in other states." Justice Patience Drake Roggensack's concurrence/dissent, ¶ 84.

PART III.

¶ 58. In sum, I conclude that the decision of the Seventh Circuit Court of Appeals in Bethesda is distinguishable for the reasons set forth, and, therefore, does not assist us in reaching an appropriate outcome in this case. I also join the majority opinion and its adoption of standards for Wisconsin courts in cases involving the transfer of a guardianship from another state.

¶ 59. For the reasons stated herein, I respectfully concur.

¶ 60. I am authorized to state that Justices JON E WILCOX, David T. Prosser, and PATIENCE DRAKE ROGGENSACK join Part II of this concurrence, and Justice DAVID T. PROSSER also joins the majority opinion and its adoption of standards for Wisconsin courts.

1 Grant County Dep't of Soc. Servs. v. Unified Bd. of Grant and Iowa Counties, 2004 WI App 153, 275 Wis. 2d 680, 687 N.W.2d 72 (reversing an order of the circuit court of Grant County, Robert E Van De Hey, Judge).

2 All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

3 We do not address the constitutional issue in this majority opinion. For a discussion of the constitutional issue, see the concurrence and dissent to this opinion. Justice Crooks's concurrence, ¶¶ 52-57; Justice Roggensack's concurrence/dissent, ¶¶ 78-87. Justice Crooks's concurring opinion is the majority opinion on the constitutional issue.

4 Wernicke's encephalopathy is "a neurological disorder characterized by confusion, apathy, drowsiness, ataxia of gait, nystagmus, and ophthalmoplegia. It was first described by [German neurologist Karl] Wernicke in 1881 and is now known to be due to thiamine deficiency, usually from chronic alcohol abuse." Borland's Illustrated Medical Dictionary 591 (29th ed. 2000).

5 The Unified Board of Grant and Iowa Counties was established under Wis. Stat. § 51.42(3)(a) to "administer a community mental health, developmental disabilities, alcoholism and drug abuse program, make appropriations to operate the program and authorize the county department of community programs to apply for grants-in-aid under s. 51.423."

6 Wisconsin Stat. § 55.06(3)(c) provides that "The petition shall be filed in the county of residence of the person to be protected."

7 By 2030, the population of individuals age 65 or older is expected to reach 70 million, more than double the number in 1998. Erica Wood, Dispute Resolution and Dementia: Seeking Solutions, 35 Ga. L. Rev. 785, 788 (2001).

8 Although the ward in this case is only 47 years old, these developments were not lost upon the parties. As counsel for Grant County observed at oral argument, "we are going to find ourselves in these situations more and more frequently as our population ages and people are continuing to be mobile."

9 Numerous factors contribute to the increase of interstate guardianships:

The ward, his or her guardian, family or assets may be located outside of the jurisdiction of the court that originally established the guardianship. Some incapacitated adults desire to be closer to family or may need to be placed in a different, more suitable health care or living arrangement. Family caregivers that relocate for employment reasons reasonably may wish to bring the ward with them. The ward's real or personal property may remain in the existing jurisdiction, however, even after the ward has moved. Interfamily conflict or attempts to thwart jurisdiction may occur less frequently, but still cause significant problems for courts. Guardians and family members, for example, may engage in forum shopping for Medicaid purposes or for state laws governing death and dying that are compatible with their views or the views of the ward.

National Probate Court Standard 3.5, Commission on National Probate Court Standards and Advisory Committee on Interstate Guardianships, a Project of the National College of Probate Judges and the National Center for State Courts.

10 At oral argument, the parties acknowledged that they did not go to the court in Jo Daviess County and ascertain whether there would be any objection to transferring the ward to Wisconsin.

11 According to one commentator, several states have established procedures to transfer a case to a new jurisdiction where the ward has relocated. Sally Balch Hurme, Mobile Guardian-ships: Partial Solutions to Interstate Jurisdiction Problems, 17 NAELA Quarterly 6, 10 (Summer 2004) (citing Ala. Code § 26-2A-111 (2003), Alaska Stat. § 13.26.155 (2003); Ariz. Rev. Stat. § 14-5313 (2003), Colo. Rev. Stat. § 15-14-107 (2003), Idaho Code § 15-5-313 (2003), Ind. Code § 29-3-9-2 (2003), Kan. Stat. Ann. § 59-3061 (2003), Mo. Rev. Stat. § 475.055 (2,003), N.H. Rev. Stat. Ann. § 464-A:44 (2003), Or. Rev. Stat. § 125.540 (2003), S.C. Code Ann. §§ 62-5-313 & -431 (2003), S.D. Codified Laws §§ 29A-5-109 & -114 (2003), Tenn. Code Ann. § 34-11-117 (2003), Vt. Stat. Ann. tit. 14 § 2923 (2003), W Va. Code § 44A-1-7 (2003)).

12 We note that in the context of family law and child custody, the legislature has established procedures to follow to resolve jurisdictional conflict. See Uniform Child Custody Jurisdiction Act, Wis. Stat. ch. 822; Wis. Stat. § 767.025(1).

13 The National Conference of Commissioners on Uniform Laws (NCCUSL) has also provided a framework for transferring the jurisdiction of guardians. See Section 107 of the Uniform Guardianship and Protective Placement Act (1997) (UGPPA). Under the UGPPA, a foreign guardian may petition for appointment in the new state if venue is or will be established. Id. To date, the UGPPA has been adopted by Alabama, Colorado, Hawaii, Minnesota, and Montana. We note that NCCUSL is beginning the process of considering whether a revision to the UGPPA or a stand-alone jurisdictional provision should be proposed. See Hurme, Mobile Guardianships, 17 NAELA Quarterly at 12; see also http://www.nccusl.org/ Update/.

14 Established in 1968, the National College of Probate Judges (NCPJ) is composed primarily of judges and probate court administrators and includes members from nearly every state.

15 Standard 3.5.2 pertains to the recommended screening and review process of a petition for guardianship. Although it is not the focus of our discussion in the present case, we set forth its text for guidance in future cases.

STANDARD 3.5.2 SCREENING AND REVIEW OF PETITION. (a) As part of its review and screening of a petition for guardianship, the probate court should determine that: (1) the proposed guardianship is not a collateral attack on an existing or proposed guardianship in another jurisdiction or state; and, (2) for cases in which multiple states may have jurisdiction, the probate court should determine that the petition for guardianship has been filed in the court best suited to consider the matter, (b) When competing guardianship petitions are filed in two or more different courts with jurisdiction, the probate court in which the earliest petition is filed should, upon review of the petition, determine the proper venue for hearing the case.

National Probate Court Standard 3.5.2.

16 We emphasize the importance of notice because the transfer of a guardianship is ultimately an administrative procedure that does not require a determination by the foreign court of the ward's incapacity or the appropriateness of the guardian's appointment and assigned powers and responsibilities.

17 This comment, of course, is directly applicable to the case at hand. If the court in Jo Daviess County approves the transfer, Jane's guardian could then seek to have Jane protectively placed in Wisconsin. However, to allow Jane's guardian to unilaterally move Jane would severely undermine Illinois' guardianship system and create an unnecessary conflict between the Wisconsin and Illinois courts.

18 For example, one of the practical concerns raised by Unified at oral argument was how it will be able to complete a comprehensive evaluation of someone who is located out-of-state. In this case, the close proximity of the ward does not pose a problem. However, in other cases, it might.

In those cases where the ward's location is of great distance, bodies like Unified need not travel to complete a comprehensive evaluation. Rather, they can obtain medical information via fax or mail and conduct telephone interviews of relevant people, including family members and employees at the facility where the ward resides. As technology increases, videoconferencing may be another possibility.

19 For more explicit guidance as to what the petitions and notice should include, we refer the parties to the model legislation for the interstate transfer of guardianship orders with associated forms. Final Report of the NCPJ Advisory Committee on Interstate Guardianships, Presented to: National College of Probate Judges October 12,1998, Appendix D. This report can be accessed at http://www.ncsconline.org/WC/ Publications/Res_CusSup_InterstateGuardianPub.pdf.

1 Justices Jon E Wilcox, David T. Prosser and Patience Drake Roggensack join Part II of this opinion, so that this opinion is the majority opinion on the constitutional issue. Justice David T. Prosser also joins the majority opinion and its adoption of standards for Wisconsin courts.

2 The federal suit was filed by seven plaintiffs — three current residents of the facility, and four prospective residents from out-of-state. For the purposes of the present case, the claims of the out-of-state residents are relevant.

3 We recognize that the court of appeals noted that Jane E.R's nursing home expenses in Illinois are currently covered by Medicaid, which would similarly cover her expenses at a Wisconsin nursing home. Grant County Dep't of Soc. Servs. v. Unified Bd. of Grant and Iowa Counties, 2004 WI App 153, ¶ 15, 275 Wis. 2d 680, 687 N.W.2d 72. However, the record reveals there has been no comprehensive evaluation of Jane E.E to determine which type of facility would be appropriate for her in Wisconsin's protective placement system. While the state would bear a portion of the expense of Jane E.E's treatment in a nursing home, Wisconsin would likely bear more of the financial burden if she were to be placed in, or transferred to, a state institution, a community based residential facility, a family home, or a supervised apartment. Once the state begins providing services for individuals with developmental disabilities, the arrangement generally continues for life.