Guardianship provisions in the (Massachusetts) Uniform Probate Code

Issue Vol. 10 No. 3 January 2008 By Timothy D. Sullivan

This 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 commonwealth.

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 services.’

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 Court.

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 5-106(c)

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 confusion.

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 5-409(a)


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 5-207(a).

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 5-209(a).


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 with Section 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:

  1. the current mental, physical and social condition of the incapacitated person;
  2. the living arrangements for all addresses of the incapacitated person during the reported period;
  3. 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;
  4. 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;
  5. 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;
  6. plans regarding future care; and
  7. 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. Section 5-309(c).

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 5-417.
  • 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 restatement.

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 or intent.

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.