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
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(durable powers of attorney) were repealed.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
- 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
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
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
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
- 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
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.