Guardianship
Sweeping Changes to Guardianship Law
Article V of the recently adopted Massachusetts Uniform Probate Code (the “Probate Code”) enacts long overdue changes intended to modernize the guardianship and conservatorship laws in Massachusetts. As of July 1, 2009 guardians are appointed only for protection of the person. A conservator is appointed to protect property and business affairs of that individual If both are needed, two petitions and appointments are required.
A guardian may be appointed for an incapacitated person “who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance." Guardians must prepare a report on an annual basis concerning the condition of the person. The report includes the current mental, physical and social condition; living arrangements, services provided, summary of guardian visits, comment on treatment, plans for future care.
A conservator may be appointed for a person to be protected if “the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money." Conservators must file an inventory and accounts on an annual basis.
Since the granting of a guardianship and/or conservatorship deprives a person of certain fundamental rights, the Probate Court recognizes the need for a right to counsel or appointment of a guardian ad litem (GAL) to investigate the condition of the individual. The court will issue an order concerning the specific duties of a guardian or conservator, but also placing certain limits on their authority and providing judicial oversight on an ongoing basis.
Several issues need to be considered in regards to guardianship and/or conservatorship including:
- Requirement of limited guardianship and tailored decrees and orders;
- Parental and spousal preference in nominating a guardian;
- Notice requirements including who must now be served and how;
- The effect on the practice of substituted judgment cases;
- Appointment of a Special Guardian;
- Reporting and monitoring requirements;
- Nursing home authorization requirement;
- The standard for appointing a conservator;
- Powers of the conservator including the authority to create, amend or revoke trust & wills;
- Reporting and monitoring requirements; and
- Accounting requirements.