Opinion
2014-07-16
In the Matter of the Application of B.A.M.W. a/k/a B.A.M.D. Accepting a Guardianship transferred from another State of C.M.W. a Mentally Retarded (or Developmentally Disabled) Person, Pursuant to N.Y. CLS Men Hyg. § 83.33.
Thomas M. Gambino, Esq., Poughkeepsie, for Petitioner, B.A.M.W.
, J.
Petitioner resubmits her petition, pursuant to Mental Hygiene Law § 83.33, asking this Court to accept transfer of a guardianship from the state of Texas.
As previously recited in the Court's decision and order of June 13, 2014, B.A.M.W. a/k/a B.A.M.D. (hereinafter “B.A.”), indicates that she is the birth mother and natural guardian of C.M.W. (hereinafter “C”), that she currently resides in Poughkeepsie, New York and has been a permanent resident of the State of New York with C since 2012. She was appointed guardian of the person of C in the Probation Court in Tarrant County, Texas on June 18, 2012. B.A. stated it was her intention to move to New York in her initial report of guardian of the person of C.B.A. then asks that this Court to recognize the guardianship order of the Texas court.
This Court previously denied the petition stating the following:
“the current petition does not include a certified copy of a Texas provisional order of transfer of the within guardianship.”
In an effort to comply with the Court's previous directive, petitioner has now re-submitted the petition with a certified copy of the Order of the Probate Court of Tarrant County, Texas appointing her C's guardian. However, this submission does not cure the deficiencies in the previous petition. MHL § 83.33(a) provides in relevant part “[t]he petition must include a certified copy of the other state's provisional order of transfer.” As MHL § 83.33 was recently enacted, with limited case law and/or guidance for the practitioner, this Court undertook its own research to identify a “provisional order of transfer”. After much inquiry the Court was without much enlightenment as to what would constitute a “provisional order of transfer”. However, upon examination of the Delaware State Courts' website, at courts.delaware.gov, and reviewing the forms relating to guardianships, a sample provisional order to transfer a guardianship was found.
Accordingly, in an effort to ease the burden upon the practitioner in this at times challenging and emerging area of law, the following form is offered as a guide in order to comply with MHL § 83.33(a):
Name of the Court of Origin
X
In the Matter of
File/Index No.________
_________________________,
An Incapacitated Person.
X
PROVISIONAL ORDER TO TRANSFER GUARDIANSHIP
On this ________ day of _______________, ________, the Court having reviewed the petition to transfer guardianship from the State of _______________ to the State of New York, and notice having been provided to all required parties without any objection being heard or following a hearing on the petition to transfer held on ____________________;
IT IS HEREBY ORDERED that:
1) The guardianship of the above named incapacitated person is hereby provisionally transferred to the State of New York.
2) The petitioner is directed to file a petition for guardianship or transfer of guardianship in the State of New York within twenty (20) days from the date of this provisional order.
3) Once a Court in the State of New York grants a provisional order accepting jurisdiction of the above guardianship, the petitioner is directed to file a copy of that order with the Court.
4) After all of the statutory requirements are satisfied, the Court may issue a final order confirming the transfer and terminating the guardianship in the State of _______________.
_________________________
Justice/Judge/Magistrate Further, specific to the within proceeding, the petitioner is referred to Texas Probate Code § 891 for the procedure to obtain transfer of the guardianship. In the event that the Texas Probate Court has its form to facilitate a transfer, petitioner should utilize the same.
The petition is dismissed without prejudice based upon the foregoing, with leave to renew upon petition, containing a certified copy of a Texas provisional order of transfer of the within guardianship.
The foregoing constitutes the decision and order of this Court.