The Massachusetts Probate Code’s first steps

Issue November 2009 By John G. Dugan, Probate Law Section Council Co-chair

In the past 50 years, health care advances have led to extended life spans and a huge growth in the population of elders, many of whom cannot fully care for themselves or their property. The Probate Court is charged with the authority and responsibility to protect the interests of persons who cannot fully take care of themselves.

Massachusetts enacted the Uniform Probate Code, G.L. Chapter 190B, on Jan. 19, 2009. Section Five, which pertains to guardianships, conservatorships and durable powers of attorney, became effective on July 1, 2009. Provisions dealing with administration of estates will go into effect on July 1, 2011.

Chapter 201 (guardians and conservators) and Chapter 201B (durable powers of attorney) were repealed. Much existing statutory and case law was effectively revised or reversed. For example:

  • Under Chapter 201, appointment of a guardian included plenary authorization to made decisions about the individual's personal care, health care and living arrangements (except for Rogers issues and extraordinary medical treatment). Under the code, a guardian's authority will always be limited to those functions that the incapacitated person (not "ward") is unable to perform as the result of a documented incapacity.
  • There is no longer a "guardian of the estate." Guardians oversee an individual's personal care, living arrangements and health care, and conservators manage property and finances. If both are required, the court will set up two separate files for the guardianship and conservatorship (though one person can still act in both capacities).
  • Under the old G. L. c 201, s 38, a court could not authorize a conservator to write a new will for the ward (now "protected person"). Strange v. Powers, 358 Mass. 126 (1970). Section 5-407 (d) (7) of the code empowers the court to allow execution of new wills as part of a conservator's estate plan. G.L. c 201, s 38 did not apply to guardians of minors. Section 5-407 does apply to conservators of minors.

Additional reporting requirements have been added:

  • Every guardian must file a Care Plan report within 60 days of appointment, and each year thereafter, following the anniversary of appointment. Section 5 - 309(b). The care plan must contain details about the incapacitated person's physical and mental health, living arrangements, finances, support services, health care, extent of guardian's visits and involvement and plans for future needs and care.
  • The court may at any time require a conservator to file a financial/spending plan, listing the protected person's current assets, income and expenses, projected budget for the upcoming year, and anticipation of the need to apply for government benefits, sell or liquidate assets etc. Section 5-416(c).
  • Accounts require more detailed information, including update of addresses for the conservator and protected person, itemization of expenditures and year-end book and market values of retained assets.

While the courts have always had the responsibility to oversee filings of proper inventories and accounts, there was not enough time or resources to track and enforce such filings. The code specifically requires the courts to monitor fiduciaries' filing obligations. MassCourts software provides the technological ability to track dates for required filings. When reports, plans, accounts or inventories are not timely filed, the court will send a Notice of Noncompliance to the fiduciary, requiring that the document be filed within 14 days.

Once filed, the reports and accounts will be reviewed by court personnel or judicial designees. After review, the court may:
a) Allow the report or account and enter an order of allowance into the court file;
b) Return the document to the fiduciary with specific instructions to amend or provide more information;
c) Require the fiduciary to attend a guardian/conservator workshop; or
d) Schedule a status conference for the fiduciary to appear and deal with the unresolved issues.

The code requires more frequent hearings, provides right to counsel in many cases, and specifically establishes the right of the respondent to attend and participate in hearings.

Probate and Family Court Chief Justice Paula M. Carey organized a committee to implement the guardian-conservator sections of the code. Justice Elaine Moriarty chaired the committee. In five months, the members read and digested the new law, located changes in existing Massachusetts law, established new procedures, revised or created new court rules and standing orders, drafted new forms and provided education and training for court personnel, attorneys and health care providers. This required an enormous amount of work in a short time period.

The courts and the committee continue to monitor guardianship and conservatorship cases under the new law, to see what is working and what needs to be adjusted. Changes may include proposals for legislative action to amend statutes, submission of rules changes to the SJC and form revisions. For example, proposals are being considered to extend the effective period of medical certificates, to allow short-term rehabilitation admissions to nursing facilities without a hearing, to remove the requirement of notice to a minor under the age of 14, and to correct technical and typographical errors.

The UPC has raised performance standards for fiduciaries, requires more work and time from attorneys who practice in this field. Understandably, many people are overwhelmed and frustrated. Fortunately, a number of people have come forward with help.

  • Justice Edward Ginsburg (ret.) has recruited members of Senior Partners for Justice to assist the courts in reviewing guardians' care plan reports.
  • The Massachusetts Guardians Association is setting up workshops around the state to provide training for guardians and conservators.
  • The Mass. Bar Association has set up a UPC Forum on its Web site that enables members to post and get answers to practical questions about UPC law and practice. (See instructions on page 6.)

Chief Justice Carey and Justice Moriarty got the implementation committee to accomplish a lot in a very short time with focus on the task, attention to detail, encouragement and a positive attitude. Courts have responded in kind. The UPC is here to stay. Practitioners must learn it, work with it and adjust our practices. If this all leads to a better quality of life for the more vulnerable people of Massachusetts, we all benefit.