Mom gets sick. One of her kids drives in from out of state, packs a bag, and brings her home “just until things get sorted out.” A few months later another sibling takes her to a third state and says she is staying. Now three states each have some claim to her, and everyone wants to know which court gets to decide whether she needs a guardian and who it should be.
Most states answer that question with a uniform law called the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. It ranks the states in order and gives the case to one of them, starting with the person’s “home state.” Texas has not adopted it. But every family that moves a parent into or out of Texas is dealing with a state that probably has.
A recent Pennsylvania case shows how that law works when a family pulls a parent back and forth across state lines. In In re Avery, No. 191 MDA 2025, 2026 PA Super 124 (Pa. Super. Ct. June 16, 2026), the court had to decide whether a mother’s Thanksgiving trip to New York was a “temporary absence” from Pennsylvania, and who gets to make that call: the mother, or the son who wanted to be her guardian.
What Happened to Mary Avery?
Mary Avery has two adult children. Her son, Jimmy Dorsey, lives in Harrisburg, Pennsylvania. Her daughter, Kecia Dorsey-Rosa, lives in the Bronx. Around 2000, after her husband died, Mary moved to South Carolina, bought a house, and lived there with her partner, Edna, for 19 years.
Jimmy had not spoken to his mother in more than ten years when she called him in May 2021, crying and asking for help. Edna was in the hospital and Mary was living alone. Jimmy and his wife, Karen, drove to South Carolina on May 19. They found Mary confused and malnourished, and her house and finances were a mess. After about a week they decided she could not stay alone. Jimmy told her the move was “temporary until we can get your affairs squared away,” and around May 26 they brought her to Pennsylvania.
Edna died on June 14. A few days later Mary signed a power of attorney naming Jimmy and Karen as her agents. A psychiatrist diagnosed her with Alzheimer’s disease. The Dorseys used the power of attorney to sell her South Carolina house for $168,082.08, and on September 13, 2021, they moved her into Phoebe Berks, an assisted-living facility near Reading.
On November 20, 2021, Mary left Phoebe Berks with her daughter for what the facility understood to be a Thanksgiving visit to New York. A week later she called the facility and said “she would not be returning.” Two days after that she faxed Jimmy and Karen a letter from a Bronx address: “This is notice to you that I have formally revoked the Power of Attorney given to you in June, 2021. You no longer have the authority to act for me.” She signed a new power of attorney naming her daughter.
On December 10, 2021, the Dorseys filed an emergency petition in the Berks County Orphans’ Court asking to be appointed temporary co-guardians of Mary’s person and estate. Mary and her daughter did not show up for the hearing. The judge issued a bench warrant for the daughter, and on December 22 she brought Mary back to Phoebe Berks. Mary had spent a total of 32 days in New York.
In July 2022 the court found Mary incapacitated and made the Dorseys her permanent co-guardians, even though they had only asked for a temporary guardianship. Years of fighting followed. Eventually the Dorseys asked the court to let them charge Mary’s estate $79,790.99 for their lawyers’ fees. The court said no, and the Dorseys appealed.
The appeal was about fees. But when the appeals court read the record, it saw a bigger problem that nobody had raised: Mary was in New York, not Pennsylvania, on the day the Dorseys filed. Did the Pennsylvania court ever have the power to declare her incapacitated in the first place?
How Do Courts Decide Which State Gets a Guardianship Case?
To understand the court’s problem, we first have to consider what a guardianship order actually does. Declaring someone incapacitated changes her legal status. It is not just a ruling between the family members who showed up in court. It binds everyone: banks, doctors, nursing homes, and courts in other states. Because the order is that powerful, only a court with a real connection to the person can issue it.
Traditionally, that connection was domicile. Quoting an old Pennsylvania Supreme Court case, the Avery court described a person’s domicile as the place “where he has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.” The problem is that domicile turns on intent, and intent is hard to prove. That is especially true when the person may not have the capacity to form it. Families in different states fought over it, and sometimes two states both claimed the same person. The court pointed to a Texas–Oklahoma dispute, In re Guardianship of Parker, as one example of courts in two states each concluding they had jurisdiction over the same woman.
The uniform act was written to end those fights. It sets up a priority list. First is the person’s “home state.” Next is a state with a “significant connection” to the person, and only after that can another state step in. Pennsylvania adopted the act in 2012. Its version defines “home state” as “[t]he state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition,” or, if that test isn’t met, the state where she was present for six consecutive months ending within the six months before the petition was filed. The court noted that every state has now adopted the act except three: “Florida, Michigan, and Texas are the remaining holdouts.”
Texas uses its own rules. Under Texas Estates Code § 1023.001(a), a guardianship for an incapacitated person “shall be brought in the county in which the proposed ward resides or is located on the date the application is filed or in the county in which the principal estate of the proposed ward is located.” That is a venue rule, and it does not use a six-month clock or ask which state ranks first. But the application has to disclose “the nature and description of any kind of guardianship existing for the proposed ward in any other state” under § 1101.001(b)(7). And when a ward leaves, § 1253.001 allows a Texas court to transfer the guardianship “to a court in a foreign jurisdiction to which the ward has permanently moved.” So the question of whether a move was permanent or temporary comes up in Texas too.
Whose Intent Decides if an Absence Is “Temporary”?
First the court had to decide whether it could even raise the issue, since nobody objected in the trial court. It held that it could. The uniform act governs a court’s jurisdiction over a person’s status, the court reasoned, and that kind of defect cannot be waived. A guardianship entered without it would be void.
Then it counted the days. The Dorseys filed on December 10, 2021, so the six-month window started June 10. Mary was in Pennsylvania on June 10, but she was not there on December 10. She had left for New York on November 20. Counting back six months from that date takes you to May 20, and Mary did not arrive in Pennsylvania until around May 26. She had been there about 178 days. In the court’s words, “When Ms. Avery left for New York, she was one week short of the six months that would have made Pennsylvania her home state under the UAGPPJA.”
The Dorseys had an answer. The definition counts “any period of temporary absence,” and they said they only ever meant for the New York trip to last a week. Count that week, they argued, and Pennsylvania wins.
The court didn’t buy it. The Dorseys cited no law, and the court said “our research has revealed no case from another jurisdiction to hold that the intent of guardianship petitioners can alter the facts of the case.” The act does not define “temporary absence” or say who decides it. But the court found nothing letting would-be guardians make that call for someone else: “Nothing in the UAGPPJA indicates that a person’s would-be guardians may unilaterally declare that the person’s absence from a state will or will not be temporary.” The act also doesn’t give the daughter any greater right to take Mary to New York than it gives the son to keep her in Pennsylvania.
So the court looked to child custody cases, because the jurisdiction rules in the guardianship act are modeled on the uniform custody act. Under those cases, whether an absence is temporary depends on whether the stay was intended to be temporary or permanent. In a custody case, the intent that counts is the parent’s. In a guardianship case, the court held, it is the person whose capacity is in question: “We hold that the principles of domicile still apply under the UAGPPJA, in so far as the respondent is the person who decides if his or her absence from a state is intended to be ‘temporary.'”
That cannot be decided from the pleadings. Whether Mary meant to leave Pennsylvania for good, and whether she had the capacity to make that decision, are fact questions. The trial court has to hear witnesses and make credibility findings. The appeals court sent the case back for an evidentiary hearing. If Mary meant the trip to be temporary, Pennsylvania was her home state and the Berks County court had jurisdiction to impose the guardianship. If she meant to move to New York, she had no home state on the filing date, and the trial court has to look at whether Pennsylvania can take the case on another basis, like being a significant-connection state.
The Takeaway
Avery did not decide where Mary Avery belongs. It decided who gets a say in that question, and the answer is Mary. A son who moves his mother, sells her house, and puts her in a facility near his own home has not made that state her home just by doing it. A daughter who takes her to New York hasn’t either. What counts is what the mother herself intended, and whether she was capable of intending it.
For Texas families, this matters in two directions. If a parent is coming to Texas from almost any other state, that state’s courts may still have priority under the uniform act for the first six months. Filing here too early can lead to competing proceedings, or to a Texas order the other state won’t recognize. If a parent is leaving Texas, the new state’s six-month clock decides when its courts take over. Texas’s own transfer statute turns on whether the ward “has permanently moved.” Either way, the family member who drove the car does not get to decide whether the move was permanent.
Before you file, write down when the person arrived, how long she has stayed, and what she has said about where she wants to live. Disclose any guardianship pending in another state, as § 1101.001 requires. And keep in mind that a jurisdiction problem nobody raises at the start can come back on appeal years later. Mary’s family is going back to the trial court almost five years after the petition was filed.
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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
