Probate: Sweeping Changes to Guardianship Law

Article V of the newly adopted Massachusetts Uniform Probate Code (the “Probate Code”) enacts long overdue changes intended to modernize the guardianship and conservatorship laws in Massachusetts. Effective July 1, 2009, the Probate Code seeks to protect the individual’s fundamental rights and minimize government intrusions imposed by the Probate Court when court involvement is necessary. This article highlights some of the most significant changes.

Prior to enacting the new Probate Code, when a person was incapacitated, Massachusetts law permitted the court to appoint a guardian to have custody of both the person and the property of the incapacitated person. The Probate Code, however, makes a clear distinction between guardians and conservators to eliminate the inherent problem of having one person exert total control over another person’s life. Now, a guardian may be appointed to have custody exclusively of the person, while a conservator may be appointed to have control only over the property of the incapacitated person.

Under the Probate Code, a guardian is directed to make decisions regarding the incapacitated person’s support, care, education, health and welfare. When an incapacitated person needs help managing property or business affairs, a conservator will be appointed. In the event that an incapacitated person needs medical and financial assistance, a court may appoint both a guardian and a conservator under separate petitions only after demonstrating the need for both types of protection.

Since the granting of a guardianship and/or conservatorship deprives a person of certain fundamental rights, the Probate Code recognizes the need for a right to counsel and for the appointment of a guardian ad litem to investigate the condition of the person subject to a protective proceeding. The incapacitated person also has a right to be present at any hearing in person, to present evidence, cross-examine witnesses and to nominate his/her own guardian or conservator. Additional new protections for the incapacitated person include not only requiring courts to spell out the specific duties of an appointed guardian or conservator, but also placing certain limits on their authority and providing judicial oversight on an ongoing basis.

The Probate Code also includes several changes related to the guardianship of minors.

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