Filing and Enforcing Protective Proceedings: Make Sure to File in the Right State

Every state allows courts to appoint guardians or conservators for incompetent people. Generally speaking, however, if the protected person lives in a different state, the reach of the appointment will be limited. A recent case from Washington demonstrates one consequence of filing in the wrong state, and also discourages trying to take advantage of interstate disputes in a complicated family fight.

Unfortunately, the sequence of events is messy. The important events, gleaned from ten pages of the Washington Court of Appeals’ opinion, are:

A father jointly bought a house in Washington with his daughter, which they intended her to eventually inherit, and on which the daughter made mortgage payments. Several years later, the father moved from Idaho to the Washington house, where the daughter and her family also lived. After consulting an attorney about possible qualification of the father for Medicaid, the daughter sued the father in Washington for concealing the existence of her mother’s will, and the father transferred the Washington house and other property in Washington, Idaho, and Canada to the daughter in satisfaction of the claim. Medicaid reviewed the transactions and approved them, qualifying the father for Medicaid.

The father’s two sons objected, and filed a petition in Idaho for appointment of a guardian or conservator. Although the father informed the Idaho court that he did not live in Idaho, the Idaho court appointed an Idaho professional fiduciary as conservator. The conservator sought control over the Washington house, frightening away potential refinancing lenders with whom the daughter had been negotiating, and obtained a reverse mortgage on the Washington house. The proceeds of the loan in excess of the payoff of the previous mortgage were never accounted for.

About nine months later, after disputes between the Idaho and Washington courts, the Idaho court terminated the conservatorship and ordered the conservator to turn over all property to the father’s attorney.

When the father died a few years later, the reverse mortgage came due. The daughter then recorded her deed, and the lender refused an extension of payment. It then sued to foreclose.

The Court of Appeals ruled for the daughter, holding that under Idaho and Washington law, the conservator did not have authority to encumber land in Washington, and the Idaho court did not have jurisdiction to authorize the reverse mortgage. The key clause in the Idaho conservatorship law states that a conservator for a nonresident of Idaho only has authority over property in Idaho, and it was clear the father had moved to Washington before the Idaho case was filed. In fact, the reverse mortgage required the father to maintain his primary residence at the Washington house. In addition, the longstanding rule is that the law of the state where real property is located governs which court has jurisdiction over the property, and Washington does not recognize the authority of out-of-state courts to award property out of state. Washington courts won’t even order release of a mortgage on out-of-state land when they rule the debt secured by the mortgage has been paid.  Because the Washington court ruled the Idaho court did not have jurisdiction, it canceled the reverse mortgage, and the lender was left holding the bag. (It might be able to recover from the fiduciary, but that suit probably would be filed in Idaho.)

The lesson from this case is that if you think you need to file a guardianship or conservatorship, don’t try to file it in the wrong state. Confirm where the protected person lives, file in that state, and if there is property out of state, arrange to have the guardian or conservator recognized where the property is. Usually, once the initial appointment is made, the out-of-state court will follow suit. If you are dealing with a guardian or conservator, and you have reason to question where the protected person lives, ask to see proof of residence and the documents under which the guardian or conservator is acting. That way, if there’s a question, you can ask to have it cleared up before you get into trouble.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: