Implementation of the Uniform Probate Code

Posted in on March 13, 2014

In January 2009, Governor Deval L. Patrick signed into law probate reforms that have been debated in the Commonwealth for nearly 20 years which is known as the Uniform Probate Code (“UPC”). The UPC comes into full effect on July 1, 2011, with the exception of the guardianship provisions which become effective on July 1, 2009. This bulletin is limited to addressing the guardianship changes.

A guardian is a type of fiduciary formally appointed by the Probate Court to care for the person, property or both of another person unable to care for him or herself. A guardian is often required when a person is unable to care for themselves due to a mental condition, physical incapacity or advanced age.

The goal of the laws surrounding guardianships are to protect the liberties of a disabled person and put limitations on orders issued by the Probate Court that would restrict such liberties. The UPC encourages limited guardianships where a fiduciary will only be appointed for a specific purpose and it permits the Probate Court to impose further limitations on the guardian. For example, in the past it was common for a guardian to use his or her power to admit the ward into a nursing home. However, under the UPC, this will change. Effective July 1, 2009 no guardian shall have the authority to admit an incapacitated person to a nursing home or any nursing facility except upon a written finding by the Probate Court that such admission is in the incapacitated person’s best interest.

At present the Probate Court can appoint a guardian over the person and property. As of July 1, 2009, the Probate Court will be required to make two separate appointments. A guardian will be appointed for the protection of the person only, not the management of financial affairs. Under the UPC the Probate Court will be required to appoint a Conservator to separately manage the person’s property, financial and business affairs. The changes resulting from the implementation of the UPC will increase the responsibilities of a guardian and conservator.

A properly drafted Estate Plan, including a comprehensive Durable Power of Attorney, Health Care Proxy and other probate substitutes can overcome the need for a guardian and conservator and avoid such Probate Court involvement subject to the UPC. If you are considering filing a guardianship and/or conservatorship on behalf of a loved one or if you would like to discuss options to avoid a guardianship and/or conservatorship in your future, please contact one of our probate specialists.