Section 1-401
(a)
If notice on any matter is required by reference to this section and except for specific notice requirements as otherwise provided, the court shall fix a return date and issue a citation. The petitioner shall cause notice of the return day of any matter to be given to any interested person or attorney if the appearance is by attorney or the interested person requested that notice be sent to the attorney. Notice shall be given:
- (1) by mailing a copy of the citation at least 14 days before the return date by certified, registered or ordinary first class mail addressed to all interested persons who have not assented in writing or their attorney if the appearance is by attorney or the interested person requested that notice be sent to the attorney at the person's office or place of residence, if known; or
- (2) by delivering a copy of the citation to the person being notified personally at least fourteen days before the return date; or
- (3) by publishing a copy of the citation once in a newspaper designated by the register of probate having general circulation in the county where the proceeding is pending or in a newspaper designated by the register of probate in a county identified by the court, the publication of which is to be at least 7 days before the return date.
(b)
The court for good cause shown may provide for a different method or time of giving notice for any return date. Notice of proceedings for guardianships of minors in the district court and the juvenile court shall be given in accordance with the rules of those courts.
(c)
Proof of the giving of notice shall be made on or before the hearing or return day and filed in the proceeding.
(d)
Any party to a formal proceeding who opposes the proceeding for any reason shall before 10:00 A.M. of the return date enter an appearance in writing giving the name of the proceeding, the objecting party's name and the objecting party's address or the name and address of the objecting party's attorney.
(e)
The objecting party shall file a written affidavit of objections to the proceeding, stating the specific facts and grounds upon which the objection is based within 30 days after the return date. If the objecting party is a respondent as defined in section 5-101, the respondent or the respondent's appointed counsel shall file a written affidavit of objection to the proceeding, stating the specific facts and grounds upon which the objection is based within 30 days after the return date.
(f)
If an affidavit of objections fails to comply with the requirements of the foregoing section (e), such affidavit of objections and the appearance of the party filing such affidavit of objections may be struck on motion after notice at any time after filing of such affidavit of objections.
(g)
If a proceeding is unopposed, after the time required for any notice has expired, upon proof of notice, the court or the magistrate may enter appropriate orders on the strength of the pleadings if satisfied that all conditions are met, or the court may conduct a hearing and require proof of the matters necessary to support the order sought.
Massachusetts comment
This section adopts many of the procedural guidelines of G.L. c. 206, § 24 and Probate Rule 16.
New Standing Order 03-09 requires proof of mailing for first class mail and proof of publication where an interested party's address or identity is unknown in any guardianship of adult or conservatorship matter.
New Standing Order 04-09 sets forth additional notice requirements in guardianship of minors.
Rule 6 of the Supplemental Rules of the Probate and Family Court has been amended to provide for service of a citation by delivering in hand or by mailing by certified, registered or ordinary first class mail at least 14 days before the return day to interested persons within the United States, its Commonwealths or territories; if in other parts, 1 month before the return day. An extended return date will be made for any counsel appointed for a minor, alleged incapacitated person or person to be protected to permit time to file an appearance or objection.
New Rule 29D of the Supplemental Rules of the Probate and Family Court requires that a notice regarding appointment of counsel be included in all guardianship and conservatorship notices.
Chapter 140 of the Acts of 2012 added the phrase “or in a newspaper designated by the register of probate in a county identified by the court” after the word “pending” in subsection (a)(3).
Chapter 140 of the Acts of 2012 added the sentence: “If the objecting party is a respondent as defined under section 5-101, the respondent or the respondent’s appointed counsel shall file a written affidavit of objections to the proceeding, stating the specific facts and grounds upon which the objection is based within 30 days after the return date.” to the end of subsection (e).