Massachusetts comment
This Massachusetts version of Article V incorporates many protections for minor, incapacitated and disabled persons which have not yet found their way into the uniform act. Extensive revisions have been drawn from the Senior Lawyers Division of the ABA which evolved into proposals to revise the Uniform Guardianship and Protective Proceedings Act, also known as Article V of the Uniform Probate Code.
The additional protections include a more precise definition of incapacity and disability; distinctions between guardians of the person and conservators of property; information required of petitioners at commencement of proceedings; more elaborate reporting requirements for guardians and conservators; and mandated monitoring by the Courts of reports and accounts.
See new Standing Order 02-09 for the effect of the new MUPC on pending cases with no permanent decree and on guardianship and conservatorship appointments made before the July 1, 2009 effective date of Article V.
Prefatory note
The Uniform Guardianship and Protective Proceedings Act is the product of a continuing review and study of laws in the area of probate matters by the National Conference of Commissioners on Uniform State Laws. In 1969, the National Conference adopted and promulgated the Uniform Probate Code. Since that time, various amendments and additions to the Uniform Probate Code have been adopted and promulgated.
Article V, Parts 1, 2, 3, and 4 of the original Uniform Probate Code cover guardianships for minors, guardianships for reasons other than minority, and protective proceedings seeking court-appointed conservators or other protective orders for the estate concerns of minors, adult incompetents, absentees and others. The following new provisions expand and extend Article V, Parts 1, 2, 3, and 4 of the original Uniform Probate Code to include the concept of “limited guardianships.”
The impetus for adding a “limited guardianship” concept to the guardianship and conservator provisions of the Uniform Probate Code grew out of the recommendations of an American Bar Association project, the ABA Commission on the Mentally Disabled, which, in relation to guardianship other than for minors, recommended that state laws be changed to avoid an asserted “overkill” implicit in standard guardianship proceedings. In part, this occurs, it was asserted, because a finding of non compos mentis or incompetence has been the traditional threshold for the appointment of a guardian. As a result, in consequence of the appointment of a guardian, all personal and legal autonomy is stripped from the ward and vested in the appointing court and guardian. The call for “limited guardianship” was a call for more sensitive procedures and for appointments fashioned so that the authority of the protector would intrude only to the degree necessary on the liberties and prerogatives of the protected person. In short, rather than permitting an all-or-none status, there should be an intermediate status available to the courts through which the protected person will have personal liberties and prerogatives restricted only to the extent necessary under the circumstances. The court should be admonished to look for a least-restrictive protection approach.
For a time, spokesmen for the Uniform Probate Code took the position that the formulations approved by the National Conference in 1969 should not be classified with “typical” guardianship legislation, and that Article V met the objectives of advocates of “limited guardianship.” In particular, it was pointed out that appointment of a guardian of the person under the 1969 UPC (Art. V, Part 3) involves elaborate personal notices (1969 UPC § 5-303), and avoids a determination of “incompetence” because of a new standard describing an “incapacitated person” (1969 UPC § 5-101[1]). Further, it was noted that a UPC guardian, who has not gained the powers of a conservator (1969 UPC, Art. V, Part 4) has very limited authority over a ward's estate (see 1969 UPC § 5-312), meaning that a common, historic reason for guardianship proceedings has been removed. A “protective proceeding” pursuant to 1969 UPC, Art. V, Part 4, through which a court appointee having broad powers over the estate of another may be obtained, does not involve any restriction or finding regarding the legal capacity of a protected person (1969 UPC § 5-408[5]). Also, great flexibility regarding the precise dimension of a protective order or the legal authority of a conservator is provided by explicit statutory language (1969 UPC §§ 5-408, 5-409, & 5-426).
Nonetheless, Idaho, the first state to adopt the Uniform Probate Code, and other states acting in response to requests by followers of the ABA Commission's work, have been enacting new “limited guardianship” statutes. In Idaho, the new limited guardianship legislation was enacted without specific repeal of the provisions of the Uniform Probate Code that were already part of their statutory law. Other states were enacting rather short statutes that adopted the least-intrusive or least-restrictive concept of limited guardianship in skeleton form without further elaboration. These, and other similar instances of confusion, overlap and other problems born of hasty legislative acceptance of limited guardianship language demonstrated that the National Conference of Commissioners on Uniform State Laws should adjust its formulations on guardianship to include explicit language relative to the concept of “limited guardianships.” The concept of “limited guardianships” certainly is consistent with the general policy considerations upon which the Uniform Probate Code, Article V, had been based in 1969. In addition, by making limited-guardianship concepts more explicit in the act, it was and is believed that some confusion could be eliminated and that this act could replace skeleton-type acts to make the concept workable.
The clearest and most explicit statements incorporating the “limited guardianship” philosophy of a least-intrusive approach to guardianships and protective proceedings are in §§ 5-306(a), 5-306(c) and 5-407(a) of the 1982 Uniform Probate Code. However, other language that appeared previously as Uniform Probate Code, Article V, Parts 1, 2, 3, and 4 has been reviewed, altered to achieve greater internal consistency and adjusted to accommodate the “limited guardianship” concept more clearly.
Indeed, the new work by the National Conference of Commissioners on Uniform State Laws of Article V of the Uniform Probate Code has resulted in two free-standing acts. These acts extend the Uniform Probate Code formulations, but each act has been designed to be enacted as a separate act should a state legislature wish to do so. The first of these, the Uniform Durable Power of Attorney Act, was completed and promulgated in 1979, and has been well received as an improved version of what was originally included as UPC Article V, Part 5. The second step has resulted in the Uniform Guardianship and Protective Proceedings Act.