The Seventh Circuit Court of Appeals rules that relatives who lured an Illinois woman to Ohio, where they had her declared incompetent and placed her in an assisted living facility, effectively changed the ward's domicile. Dakuras v. Edwards (7th Cir., No. 02-1563, Nov. 14, 2002).
James Dakuras and Ella Calder lived together in Illinois 'in a simulacrum of marriage.' After Ms. Calder had a stroke, her relatives deceived her into moving to Ohio, where they had her declared incompetent. They placed her in an assisted-living facility there and are preventing Mr. Dakuras from having any contact with her. In addition, when they removed Ms. Calder from Illinois to Ohio the relatives took property owned by Dakuras and refuse to return it.
Noting Mr. Dakuras's claim that Ms. Calder had been deceived into relocating to Ohio, the U.S. district court concluded that his action did not belong in federal court. Involuntary removal does not change one's domicile, the court ruled, reasoning that that luring Ms. Calder to Ohio was the same as her having been forcibly removed there.
In an opinion written by prolific author Richard A. Posner, the U.S. Court of Appeals for the Seventh Circuit reverses, finding that because Ms. Calder is incompetent, her guardians can change her domicile. Since Ohio is now Ms. Calder's domicile, Mr. Dakuras's action is a diversity fraud suit.
While noting that courts are divided on the issue of whether a guardian can change a ward's domicile, the court concludes that 'the better view is that a guardian can change his or her ward's domicile, in just the same way that a parent (or, for that matter, a guardian) can change a child's domicile. . .' However, the court observes that if Ms. Calder's relatives had spirited her out of Illinois for the purpose of being able to remove any state-court case brought by Mr. Dakuras to federal court, 'there would be grounds for doubt that they had actually changed her domicile.' 'Although the defendants are not trying to confer federal jurisdiction, but to defeat it,' the court writes, 'they should not be allowed to gain a litigating advantage from having changed their ward's domicile for an improper reason.' The court notes in passing that the ability of a guardian to change a ward's domicile would allow an incompetent and institutionalized person to move to a state with more favorable Medicaid rules.
To download the full text of this decision in PDF format, go to: https://caselaw.findlaw.com/data2/circs/7th/021563p.pdf .
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