Massachusetts Uniform Probate Co

Massachusetts Uniform Probate Code
ARTICLE V FOR LEGAL SERVICES ADVOCATES

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

I. The MUPC -- Article V

  1. Origins -- based on the Uniform Guardianship and Protective Proceedings Act

  2. Implementation -- Effective July 1, 2009

  3. Key concepts

    • More due process protection for the respondent
    • Modern concepts of incapacity
    • Presumption of limited authority for the substitute decision maker
    • Increased court oversight and monitoring

  4. New Terminology (§ 5-101)

    • Incapacitated person - guardianship
    • Protected person - conservatorship
    • Ward -- minor

  5. Guardians of adults have authority over the person; conservators over the property and estate -- no longer any guardians of estates

  6. Definitions

    • No longer categorical bases for guardianship (MI, MR, physical incapacity)
    • Instead, there is a modern functional definition of incapacity (§ 5-101) for purposes of guardianship
      • Clinically diagnosed condition
      • Inability or receive & evaluate information or communicate decisions for physical health safety or care
      • Even with technological assistance
    • Mental retardation is defined (§ 5-101), but used only to require a clinical team report
    • Person to be protected(§ 5-401) for purpose of conservatorship
      • Unable to manage property and business affairs
      • Clinically diagnosed
      • Impairment in ability to receive & evaluate information or make or communicate decisions
      • Even with technological assistance
      • Or detained or unable to return to U.S.
      • Property will be wasted or dissipated

  7. Petition (§ 5-303 guardianship § 5-404 conservatorship)

    • There will almost certainly be separate petitions required for conservatorship and guardianship
    • The recently revised petition form will be probably be changed only slightly
    • § 5-303 requires particular information, including whether the guardian seeks authority to admit to a nursing home
    • Must, as now, also include requests for other special authority (substituted judgment) in guardianship cases

  8. Appointment of counsel (§ 5-106)

    • Court shall appoint counsel if the person or anyone on his or her behalf requests counsel
    • Court shall appoint attorney if it determines at any time the interests of the person are or may be inadequately represented
    • Counsel will continue to be appointed in same manner as now in all Rogers other substituted judgment cases
    • Compensated by the estate, petition or if indigent, the Commonwealth (CPCS)

  9. Additional protections in § 5-106

    • The person is entitled to be present at hearings
    • Any person may apply to provide information to the court

  10. Medical Certificate or Clinical Team Report (§ 5-303 guardianship & § 5- 407 conservatorship])

    • The current long medical certificate will be slightly revised to meet MUPC -- 30 day time line is unchanged, so it will probably be necessary to file more than one in the course of the case
    • The CTR may be revised -- 180 day time is unchanged\

  11. Temporary appointments (§ 5-308 guardianship and § 5-412A conservatorship)

    • Court may appoint temporary guardian if it finds that absent appointment there will be substantial harm to incapacitated person's health, safety or welfare
    • A temporary conservator may be appointed if there will be substantial harm to the property, income or entitlements of the protected person or his or her dependant(s)
    • Request is by Motion with an Affidavit describing the emergency
    • Appointment may be for 90 days and may be extended
    • Notice: in hand to respondent; delivered to all others named in petition; may be waived or shortened in “immediate emergency”; if shortened or waived, right to de novo hearing expeditiously

  12. Special Guardians (§ 5-308) & Special Conservators (§ 5-412A)

    • May be appointed, with or without notice, if court finds “immediate action” is necessary
    • Suspends authority of previously appointed guardian
    • 90 days appointment

  13. Limited guardianship/conservatorship (§ 5-306, § 5-407)

    • Liberties restricted only to the degree necessary
    • Substituted judgment process remains basically unchanged (§ 5-306A)

  14. Guardian of the person -- reporting & authority (§ 5-309)

    • Guardian reports within 60 days of appointment and annually thereafter
    • Court must monitor the reports and may appoint a GAL to investigate
    • Guardians may no longer be given authority to admit of commit to a mental health or mental retardation facility. Rather c. 123 will apply
    • Guardian may not revoke a HCP without a court order; health care agent's decisions supersede those of a guardian
    • Guardian must seek special authority to admit incapacitated person to a Nursing Home and court may grant only if in “best interest”

  15. Conservator

    • Conservator accounts (§ 5-418) at least annually
    • Monitoring: courts shall establish a system for monitoring, probably appointment of a GAL (see § 1-404)
    • Must file a plan (§ 5-416) including projections for expenses and resources
    • Protective orders (§ 5-408): Without appointment of a conservator, court may authorize, direct or ratify any transaction necessary to “achieve any arrangement for security, service or care meeting the foreseeable needs of the protected person.” A special conservator may be appointed to assist in accomplishment of a protective order.

  16. Guardians of Minors

    • $5000 or less -- conservator not required (§ 5-102)
      • Pay to minor, custodian, bank
    • Parental delegation (§ 5-103)
      • Temporary agent 60 days
      • Care, custody & property
      • Signed writing with 2 witnesses
      • Compare to new Caregiver Education & Health Care Authorization under G.L. 201F (allowing 2 year designation by parent(s) of a caregiver to have concurrent parental rights and responsibilities relative to a minor's education and health care.
    • Parental/Guardian appointment (§ 5-202)
      • Effective on death, incapacity, inability to care for minor
      • Must seek court confirmation within 30 days
      • May be prevented by (§ 5-203)
        • Minor age 14
        • Other parent
        • Person having care or custody
        • Person with whom minor has resided for 60 days
          • But not a foster parent
    • Guardian appointment(§ 5-204)
      • Parents are deceased or incapacitated
      • Parents consent
      • Parental rights have been terminated
      • Parents voluntarily surrendered , or
      • Parents are unfit
    • Temporary Guardian of Minor (§ 5-204)
      • By motion with affidavit
      • 90 days
      • Substantial harm to health, safety or welfare
    • Special guardian of minor (§ 5-204)

  17. Durable power of attorney

    • Liability for unreasonable refusal to honor DPA (§ 5-506)
    • Nominate guardian, conservator
      • Waive sureties on bond (§ 5-503)

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.