Introduction

In the Red River Valley, it is common for family members 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 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 whether an adult is incapacitated and unable to make responsible personal decisions and/or manage their property and financial affairs. After an individual is found to be incapacitated, the court will appoint a guardian, a conservator, or both.

For more information on guardianships and conservatorships, please review the following blogs:

Guardianship vs Conservatorship: What You Need And When

Guardianships: Why And When

The Steps Of A Guardianship

What If Cher Was Seeking A Conservatorship In North Dakota?

Transferring Guardianships And Conservatorships

If the person subject to guardianship or conservatorship relocates 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 state, the guardian or conservator petitions the court to transfer the guardianship or conservatorship to the new state. Notice of the petition must be provided to interested persons, including the person subject to the guardianship or conservatorship and their spouse and adult children.

After the court  provides an opportunity for a hearing, a provisional order granting the petition may be entered if:

1. The court is satisfied the guardianship or conservatorship will be accepted by the court in the new state;
2. The person subject to the guardianship or conservatorship is physically present in or reasonably expected to relocate to the new state;
3. 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
4. Plans for care and services for the person subject to the guardianship or conservatorship in the new state are determined to be reasonable and sufficient.

If granted, the provisional order will require that a petition be filed in the new state 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 State

Next, the guardian or conservator petitions the court in the new state to accept the transfer of the guardianship or conservatorship from the original state.  Again, notice of the petition must be provided to the interested persons. 

The court in the new state 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 state.

Step Three:  Obtain a Final Order for Transfer from the Court in the Original State

The provisional order issued by the court in the new state will be provided to the court in the original state, which will issue a final order confirming the transfer and terminating the guardianship or conservatorship in the original state.

Step Four:  Obtain a Final Order for Acceptance of the Transfer from the Court in the New State

The final order issued by the court in the original state will be provided to the court in the new state, which will issue a final order accepting the transfer and appointing the guardian or conservator.

Step Five:  Judicial Review

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.

Conclusion

Transferring a guardianship and/or conservatorship involves a lot of back and forth between the original state and the new state that may become confusing. Many states, including North Dakota and Minnesota, have a variety of resources available online. However, it may become necessary (or just easier) to hire an attorney to help navigate the process.

If you have any questions regarding guardianships and conservatorships, please contact us.

This article is for informational purposes only and is subject to our disclaimer.