UPC ushers in first stage of reforms

Issue June 2009 By Roberta Holland

Guardians, conservators and the court system itself face new responsibilities under the sweeping probate code changes that take effect in July.

The changes, signed into law by Gov. Deval Patrick this January after nearly 20 years in the works, align Massachusetts with the Uniform Probate Code. The first set of changes, which affect guardianships and conservatorships, go into effect July 1. At the heart of the reform is an effort to extend better protections to incapacitated persons and minors. The rest of the UPC changes are scheduled to go into effect July 1, 2011.

“It’s a sea change in Massachusetts,” said Judge Paula M. Carey, chief justice of the Probate and Family Court.

“It requires more work on the judicial end, and as a result, probably for lawyers,” Carey said. “In the long run, this is doing a far better service for these individuals than we did in the past.”

Beginning July 1, limited guardianships will be favored rather than broader plenary guardianships. Guardians will be appointed for the person only; conservators would need to be appointed for management of property. Medical certificates must describe the person’s limitations, evaluations and prognosis.

Guardians will be required to file a plan within 60 days, including details like living arrangements and other services, as well as an annual report. The court system must establish a system to monitor guardianships and conservatorships.

The change also eliminates the current requirement to deem the individual mentally ill, physically incapacitated or mentally retarded. Carey said she has seen many people come before her over the years who didn’t have a problem with a guardianship but did have a problem being labeled mentally ill.

“The focus now is a more modern focus, which is really on what can this person do and what can’t this person do,” Carey said.

The courts face additional monitoring requirements, and Carey said they may turn to outside resources to help ensure the courts fulfill the judicial oversight required. That applies to guardianship of minors as well, so courts will have annual reviews to “ensure the needs of those children are being met and that the children are still where we’ve put them.”

Another major component of the new code is the appointment of counsel if the protected person or someone on their behalf requests one. The court also can appoint counsel on its own.

Mark A. Leahy, a partner with Whittum & Leahy in Hingham and a member of the court’s implementation committee, said there has not been substantive reform of the probate code here since the 1970s. The Massachusetts Bar Association, the Boston Bar Association and other groups joined to work on the effort, which first began in 1990 and became clogged in the Legislature a decade ago. Leahy, who worked on the joint MBA-BBA committee on UPC, calls the result “a modern, state-of-the-art probate code.”

Leahy believes the changes will affect the petitioner seeking guardianship the most. “This person’s going to have a greater effort in their due diligence, preparing their information and presenting their information. Of course it’s going to be more work for the doctors also to be able to identify the functional limitations and provide clinical diagnosis to support that,” Leahy said.

For petitioners, who are often non-lawyers, the process will become more complicated, Leahy said. But he added that the courts realize this and are preparing written instructions and training sessions to help individuals navigate the process.

Attorneys “have to be ready to study the forms, procedures and rules and instructions the court is going to be providing,” Leahy said. “In June, an incredible amount of practical, procedural information is going to be available through the courts. Everybody’s going to be having to learn this at the same time.”

“Everybody’s going to have to get used to it, but it’s important,” Carey said. “We’re giving greater due process protections to those individuals who are the most vulnerable individuals that appear before our court. I feel passionately about that.”

The court has organized judicial and court staff trainings for the first week of June. Those will be followed by bar trainings and a host of other forums, some aimed at clinicians or nursing homes. Many forms will change as well.

“The trainings that are going to take place in June and July are the trainings that are going to be very important for practitioners to go to,” said Carey, adding that information also will be posted on the court’s Web site. “We are trying to make it as user-friendly and as seamless as we possibly can.”