Should this be changed so that guardians would have the authority to make short term placements in nursing and rehabilitation facilities? But, if so, what is short term, 30 days, 60 days? Or, is there a guideline somewhere in the insurance or health regulations that this could be keyed to?

Shouldn’t a written notice of placement be sent to the nursing home and the appointing court?  Then, if the placement needed to become long term, the guardian would have time to file a petition to modify his or her authority.

But some say that now that the MC is so much more detailed, it’s much more difficult and/or expensive to obtain, making it near impossible to get a permanent appointment without a second doctor visit and MC.

Should the rule be changed to 60 days for the hearing, or 60 days for both filing and hearing?  How about 90 days?  Or should the strict limit of 30 be for only filing and let the court determine if another is needed at hearing? In acute care situations, the shorter limit might be appropriate as dramatic improvement could occur before hearing. But for prolonged illness, a new MC might be unnecessary.  How to know the difference - another checkbox on the certificate?

Or, would the long awaited added protections brought by the Code be diluted by changing this policy which has been in place for many years?

This is an active topic among the courts and the guardianship bar.  Opinions seem to be all over the place. If you have an opinion, please post your comments here.  We’ll monitor and report to the MUPC Implementation Committee.

In addition, the court may appoint a special conservator to assist in implementation of a single transaction or protective arrangement where a continuing permanent conservator appointment is not necessary (5-408). It’s likely that many single transactions will require someone with authority to sign off on the transaction. This is not an emergency appointment and thus the term “temporary conservator” is not used.  It doesn’t have to be requested in the petition. The role of the special is only to carry out the functions directed by the court and report back.  Formal acceptance by the court of the report may be necessary to permit any sureties to be canceled.

Beginning July 1, 2009 guardians will be appointed for personal decision making only and new appointees will not have authority over the incapacitated person’s property, including bank accounts.  Conservators must be appointed to manage any property and bank accounts.

Since any appointment may be limited in its scope, it becomes important for the Letters of Conservatorship to be examined to determine if a conservator has authority appropriate to a particular transaction.  For instance, the Letters may permit the protected person to continue managing some accounts.  Or, some accounts may be restricted to prohibit withdrawals (except transfers to take advantage of interest rates) except by court order.

Any person who in good faith assists of deals with a conservator is protected except as to limitations endorsed on Letters of Conservatorship and certain transactions which require court approval.

A conservator may expend funds for the support, education, care or benefit of the protected person. The new Probate Code includes a list of powers which are conferred on a conservator (unless limited by the Letters). They include authorization to invest and reinvest funds of the protected person as would a trustee and, more specifically, depositing funds in any single state or federally insured bank, not in excess of the amount protected by federal or state insurance.  A conservator may also borrow money to be repaid from estate assets.  But, a conservator may not sell real estate without a license granted by the Probate and Family Court.

Old plenary (general) guardianships and guardianships of the estate will still confer authority over the person’s property and they will be automatically considered to be conservatorships. New appointments of guardians will not include power over property, including bank accounts. After June 30 new appointments will have to be of conservators if there is property to be managed. Anyone with a new or old appointment with powers over property can get Letters of Conservatorship from the Probate and Family Court.  The old appointment remains in effect and the guardian or conservator is not required to make any new filings for continuation of authority.

A bank may pay funds of a protected person to a conservator or guardian of the estate appointed in another state after receiving proof of appointment and an affidavit of the guardian or conservator that no conservator proceeding is pending in this state and that the foreign conservator or guardian of the estate is entitled to receive the funds.  If the bank is not aware of any pending proceeding, it is discharged of liability.

The new law provides that a durable power of attorney will not be affected by subsequent disability or incapacity of the person making the power, or lapse of time unless it states a time of termination.  A new provision provides that any person relying in good faith on a durable power of attorney will not be liable for action taken in such reliance. However, unreasonable refusal to honor a durable power of attorney can result in a suit for damages.

The Probate Code also introduces new procedures which will enable quicker and more efficient probate of estates of deceased persons.  It will also permit more privacy relative to estate assets.  However, these provisions will not be effective until 2011.

Parties may request that additional information be impounded as well by motion brought under Trial Court Rule VIII.  Considerations for impoundment include the respondent’s preferences and the rights and interests of third parties.

Guardians of both the person and estate (plenary guardianship) will going forward be considered both guardians and conservators.  When the matter is next before the court, a new case file will be opened for the conservatorship.  Guardians of the estate only will be treated as conservators. No new filings are required to maintain the authority of the guardian or conservator.

However, if a guardian seeks a new admission to a nursing home, authority must be sought from the court by a Petition to Expand- Modify- Limit the Powers of a Guardian (MPC 201).  Admissions made prior to July 1 will be valid without further authorization, even through any temporary hospitalization.

Guardians, whenever appointed, will be required to file an Annual Report describing the incapacitated person’s condition, care, supervision, and visits (Form MPC 821).  While new appointments will be automatically monitored for reporting compliance by the new MassCourts computer system, older cases will be reviewed and entered into the monitoring system when the cases are next before the court.

Conservators (including former guardians of the estate) continue to be required to file annual accountings.  Older cases will be reviewed and entered into the monitoring system when the cases are next before the court.  In addition to being monitored, conservators will be expected to file and present accounts for allowance annually.

Upon request, Letters of Guardianship or Letters of Conservatorship will be issued in place of old certificates of appointment.

Note that for any hearing for the appointment of a temporary or permanent guardian or conservator after June 30, the new Medical Certificate will be needed to support the Court’s required findings under the new law.

The forms are in PDF format with expandable sections.  Filled in forms may be saved with Adobe Acrobat Standard or Pro.

The link to the forms is:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html