Massachusetts Uniform Probate Code

Robert D. Fleischner, Esq.
Center for Public Representation
Northampton, MA
June 2009

I.         The MUPC -- Article V

II.             Caregiver authorization statute – Chapter 201F – and similar MUPC provisions

1. The Caregiver Authorization law, c. 201F, provides that a parent, without a court order, may share “concurrent parental rights” of a minor with an adult caregiver of a child for up to two years, but only in two specific aspects of parental authority -- education and health care. The parent may override or suspend the caregiver's authority at any time.  The caregiver consent authorizations do not replace the authority of any other adult who also has authority for the child, but only "sub-divide" the signing parent's authority. The two year authorization is longer than the 60 day transfer in the MUPC. The Probate Court does not confirm or authorize the delegation, but does have jurisdiction over any disputes arising from the delegation. The key is that the parent keeps concurrent decision making authority.

2.  Section 5-103 of the MUPC provides for an up to 60 day "transfer," also without a court order, of any or all a parent's or guardian's authority to a third party "temporary agent."  A parent may not make such a transfer if the child has another parent whose whereabouts are known without that other parent's consenting in writing. The § 5-103 delegation need not be approved or confirmed by the Probate Court, but the court may “limit” or “alter” the delegation, presumably on a petition by some interested party.

3.  MUPC § 5-202 creates a sort of a “guardianship of a minor advance directive,” replacing the emergency stand-by and proxy guardianship provision of the current c. 201 §§ 2A – 2H. It allows a parent to execute a revocable document that appoints a guardian for a minor child, the appointment to become effective on the occurrence of a specified contingency – the parent’s death, or an adjudication of incapacity or a written declaration by a physician that the parent is no longer able to care for the child. A court may confirm the appointment prospectively if it finds the parent will be unable to care for the child within two years. With or without prospective confirmation, the guardianship “springs” into effect on the occurrence of one of the contingencies. Within 30 days after the parental appointment becomes effective, the guardian must seek court “confirmation” of the appointment.