article was first presented at the Nov. 15, 2008 Annual Guardianship Conference
presented by the Advanced Legal Studies Department at Suffolk Law School.
This article will review
some of the changes to be implemented if the proposed Massachusetts version of
the Uniform Probate Code is passed. In many cases, these changes can be
implemented by the Probate and Family Court under existing law. Most of the
changes are a natural extension of the body of law which already serves the
Article V of the Uniform Probate Code is a
modernization of the law of guardianship and conservatorship. The Massachusetts
version is the result of many hours of careful review and compromise over
several years. These efforts have been led by a committee of dedicated
individuals chaired by attorney Raymond Young and shepherded by the reporter,
attorney Mark A. Leahy.
The guardianship portion of the Massachusetts
Probate Code reflects the progression of the law and societal attitudes. To
understand the fundamental changes in it, one must consider how we, as a
society, have changed our view of disabled and mentally ill individuals over
the last 50 years; and most notably, in the last couple of decades.
Following the tenor of the Americans with
Disabilities Act of 1990, the Massachusetts Probate Code looks to abilities
rather than disabilities. Rather than marginalizing an individual with
compromised ability, the Massachusetts Probate Code seeks to protect the
individual’s fundamental human rights and minimize the governmental intrusions
imposed on those rights by the Probate and Family Court when protective
proceedings are necessary. Language is an important instrument in the way we
think. The Massachusetts Probate Code recognizes this and attributes new
meanings to old terminology. By definition, the term ‘ward’ is only used for
guardianships of minors. Section 1-201(56). An adult
in need of services is called an ‘incapacitated person’ or a ‘person in need of
In many ways, Massachusetts courts have led the
way in protecting the rights of those individuals whose abilities are
compromised due to mental illness or deficiencies. In 1977, the Supreme
Judicial Court determined that even a profoundly mentally ill individual
retained the right to have his position considered when extraordinary medical
treatment was proposed. Superintendent of Belchertown State
School v. Saikewicz, 373 Mass. 728 (1977). With that decision, the
Court articulated the concepts of substituted judgment versus best interests
and found that at least in certain situations, an individual was entitled to
counsel before ‘extraordinary’ medical intervention. These concepts have
evolved through the familiar Rogers line of cases. Rogers
v. Commissioner of Department of Mental Health, 390 Mass. 489 (1983).
Right to counsel
The Massachusetts Probate Code recognizes that
imposing a guardianship, conservatorship or other protective order upon an individual
deprives the individual of fundamental rights. Thus, Section 5-106 holds that
if an individual subject to guardianship or conservatorship requests counsel,
if someone on his or her behalf requests counsel, or if the court determines
that he or she may be inadequately protected, the court shall appoint counsel,
‘giving consideration to the choice of the person if 14 or more years of age.’
The court may also appoint a guardian ad litem to investigate the
condition of the incapacitated person or person to be protected. This section
is consistent with the practice of some divisions of the Probate and Family
Right to be present at hearing
In addition to counsel, an individual subject to
protective proceedings has the right to be present at any hearing in person, to
present evidence and to cross examine witnesses. This section does not apply to
minors under the age of 14. However, a minor over the age of 14 is entitled to
be present unless the court upon written findings
determines that it is not in the best interest of the ward to be present. Section
Division of authority
Advanced directives are a relatively recent
development in the law. However, they are broadly accepted. Massachusetts
adopted the Uniform Durable Power of Attorney Act in 1981 and Health Care
Proxies in 1992. These documents allow an individual to select a person who
he/she trusts to handle his/her financial affairs or health care decisions in
the event of incapacity. The documents are completely separate. In my
experience, it is not unusual for an individual to determine that one person
would be best suited to manage his/her financial affairs and another person
best suited to make medical decisions in the event of incapacity.
Guardian v. conservator
Under existing law, the court may appoint a
separate guardian of the estate and guardian of the person. However, the
separation of fiscal and medical responsibilities remains unusual. As a result,
when separate guardians (of the person and estate) are appointed, there may be
The Massachusetts Probate Code provides a
logical extension of the principles underlying advanced directives. A guardian
‘shall make decisions regarding the incapacitated person’s support, care,
education, health and welfare.’ Section 5-309(a). But, a
guardian does not manage the finances of the incapacitated individual.
When an incapacitated individual needs help
managing property or business affairs, a conservator will be appointed. A
“‘conservator’ means a person who is appointed by a court to manage the estate
of a protected person.” Section 1-201(8). Clearly
separating the fiscal and medical authority with distinctly different titles
should relieve the most of the confusion caused by the current (guardian,
guardian of the person, guardian of the estate) nomenclature.
In the event that an incapacitated person
requires both financial and medical assistance, the court may appoint both. A
petition for guardianship and a petition for conservatorship may be filed
together. In many cases, the same person will serve in both capacities.
Nomination of guardian/conservator
The Massachusetts Probate Code strongly supports
an individual’s right to nominate his/her own guardian. “Unless lack of qualification
or other good cause dictates the contrary, the court shall appoint a guardian
in accordance with the incapacitated person’s most recent nomination in a
durable power of attorney.” Section 5-305. However, the
potential for exploitation and undue influence of a susceptible person who has
not yet been determined in need of protection is recognized. The Massachusetts
Probate Code gives the court substantially more discretion when appointing a
conservator. When appointing a conservator,
[t]he following are entitled to
consideration for appointment in the order listed: (1) Unless lack of
qualification or other good cause dictates the contrary, a person nominated in
the protected person’s most recent durable power of attorney; ... Section
The Court, acting in the best interest
of the protected person, may pass over a person having priority and appoint a
person having a lower priority or no priority. Section 5-409(b)
In the case of minors, there is a balancing of
the rights of the parents and the rights of the minor, if over the age of 14:
A parent, by will or other writing
signed by the parent and attested by at least 2 witnesses, may appoint a
guardian for any minor child the parent has or may have in the future, may
revoke or amend the appointment, and may specify any desired limitations to be
granted the guardian. Section 5-202(a).
Parental nomination is similarly applied to an
adult child who is incapacitated. Section 5-301(a).
The Court shall appoint a person
nominated by the minor, if the minor is 14 or more years of age, unless the
Court finds the appointment contrary to the best interest of the minor. Section
Duties of a guardian
A guardian of a ward [minor] has the
powers and responsibilities of a parent regarding the ward’s support, care,
education, health and welfare. A guardian shall act at all times in the ward’s
best interest and exercise reasonable care, diligence and prudence. Section
As the Massachusetts Probate Code focuses on
abilities rather than disabilities, the powers of the guardian must be
carefully considered by both the court and the guardian.
The court must make specific findings when
appointing a guardian. These include findings that the expected procedural due
process and notice provisions have been met. They also include findings that
the person’s needs “cannot be met by less restrictive means, including the use
of appropriate technological assistance.” Section 5-306(8).
“ ... A guardian shall exercise
authority only as necessitated by the incapacitated person’s mental and
adaptive limitations, and, to the extent possible, shall encourage the
incapacitated person to participate in decisions, to act on his or her own
behalf, and to develop or regain the capacity to manage personal affairs. A
guardian, to the extent known, shall consider the expressed desires and
personal values of the incapacitated person when making decisions, and shall
otherwise act in the incapacitated person’s best interest and exercise
reasonable care, diligence and prudence.” Section 5-309(a).
Limitations on authority of a guardian
Massachusetts courts already impose substantial
limitations on the authority of a guardian where extraordinary medical treatment,
including treatment with anti-psychotics, is necessary. The Massachusetts
Probate Code incorporates the Rogers decisions and procedure
5-306A Substituted Judgment. However, the Massachusetts Probate Code
goes beyond the Rogers restrictions in two significant areas.
First, “[n]o guardian shall have the authority
to admit an incapacitated person to a nursing facility except upon a specific
finding by the Court that such admission is in the incapacitated person’s best
interest.” Section 5-309A. Presumably, a Rogers
proceeding, or something akin to a Rogers proceeding would be
necessary for every admission of an incapacitated person to a nursing home
unless that person had a valid health care proxy.
Second, the guardian is not permitted to admit
an incapacitated person to a mental health facility or mental retardation
facility without going through the commitment proceedings outlined in M.G.L. c.
123. Jurisdiction for committal proceedings is removed from the Probate and
Family Court. Even where there are Rogers proceedings,
committal proceedings must be pursued in the district court.
Finally, limited guardianships are encouraged
and the court may impose any further limitations on the guardianship which it
feels are appropriate.
Judicial oversight of a guardian
The Massachusetts Probate Code affords important
new protections for the incapacitated individual. Currently, a guardian is appointed
and turned loose. Upon appointment, the court washes its hands of the protected
person unless there are ongoing Rogers proceedings or
somebody with standing brings a complaint.
Under the Massachusetts Probate Code:
A guardian shall report in writing the
condition of the incapacitated person and account for funds and other assets
subject to the guardian’s possession or control within 60 days following
appointment, at least annually thereafter, and when otherwise ordered the
Court. A report shall briefly state:
- the current mental, physical and social
condition of the incapacitated person;
- the living arrangements for all
addresses of the incapacitated person during the reported period;
- the medical, educational, vocational
and other services provided to the incapacitated person and the guardian’s
opinion as to the adequacy of the incapacitated person’s care;
- a summary of the guardian’s visits with
and activities on the incapacitated person’s behalf and the extent to which the
incapacitated person participated in decision making;
- if the incapacitated person is
institutionalized, whether the guardian considers the current treatment or
habilitation plan to be in the incapacitated person’s best interests;
- plans regarding future care; and
- a recommendation as to the need for
continued guardianship and any recommended changes in the scope of the
guardianship. Section 5-309(b).
The Court shall establish a system for
monitoring guardianships, including the filing and review of annual reports.
Duties of a conservator
A conservator acts essentially as a trustee. The
focus on acting solely in the best interest of the incapacitated person is
tempered with various provisions allowing the conservator individually, or with
court authority, to exercise some level of substituted judgment.
Enumerated duties include:
- A conservator acts as a fiduciary and shall
observe the standards of care imposed on a trustee by the Uniform Prudent
Investor Act. Section 5-416(a).
- A conservator shall encourage the protected
person to participate in decisions, to act in the person’s own behalf and to
develop or restore the person’s ability to manage his own estate and business
affairs. Section 5-416(b).
- A conservator may be ordered by the court to
develop a plan for managing, expending and distributing the protected person’s
estate. Section 5-416(c).
- A conservator must inventory the estate
within 90 days. The protected person, if over the age of 14, shall be provided
a copy of the inventory, as well as any parent or guardian. Section
- A conservator must file annual accounts with
the court. Section 5-418.
- A conservator of a minor may petition the
court to set up a revocable trust extending beyond the minority of the minor.
The court must find that the trust is a) in the best interest of the minor, b)
the minor and issue of the minor are the only beneficiaries of the trust during
the minor’s lifetime, and c) if the trust terminates during the minor’s
lifetime, all property will be distributed to the minor. Section 5-407(c).
- A conservator has the kind of broad powers to
manage property and pay expenses which one would expect of a trustee. See
generally 5-423 Powers of Conservator in Administration.
- If the estate is ‘ample,’ a conservator of an
individual other than a minor may make gifts to charity or to persons which the
protected individual wishes to benefit in amounts up to 10 percent of annual
income. Section 5-424.
- A conservator may file what is currently
considered a Petition for Estate Plan pursuant to M.G.L. c. 201 §38. The powers
that the court may grant here are quite broad (going beyond M.G.L. c. 201 §38).
The Massachusetts Probate Code allows a conservator to seek authority from the
court to make gifts, exercise powers of appointment, create trusts, change
beneficiaries on insurance or annuities, exercise elective share rights,
disclaim estates and make, amend or revoke a will. Section 5-407(d).
Judicial oversight of a conservator
“The Court shall establish a system for
monitoring of conservatorships, including filing and review of conservators’
accounts and plans.” Section 5-418(f)
Article V of the Massachusetts Probate Code
assembles the law of guardianship and conservatorship in a clear and concise manner.
It is not so much a departure from current law as it is a progressive
The most significant change is that of perspective.
The Massachusetts Probate Code views people in light of their abilities, rather
than their disabilities. Its focus forces all involved to consider the personal
and fundamental rights of the protected person. In doing so, consideration is
consistently given to limiting the imposition of authority to those areas
necessary to protect the individual.
Other areas of change include the adoption of
the kinds of protection to incapacitated individuals which the public believes
guardianship offers, including financial audits and care plan reviews.
In addition, there are several areas where
existing law is ‘cleaned up’ and presented in a more logical and complete
manner. (For example, M.G.L. c. 201 §38 is more clearly restated in Section
5-407(d).) By offering more clear and more complete definitions, these sections
may slightly expand the scope of current law. But, they do not change its perspective
Finally, the law recognizes that in these
proceedings the court is removing a person’s fundamental human rights.
Therefore, the constitutional rights of notice, hearing and right to counsel
are explicitly provided in the statute.