Mass. General Laws c.190B § 5-101

Definitions and inclusions

This is an unofficial version of a Massachusetts General Law.

Updates

Amended by St. 2024, c. 392, § 149, effective January 9, 2025.

Section 5-101

As used in parts 1 to 4, inclusive, of this article:

• (1) ''Claims'', in respect to a protected person, includes liabilities of the protected person, whether arising in contract, tort, or otherwise, and liabilities of the estate which arise at or after the appointment of a conservator, including expenses of administration.
• (2) ''Conservator'', a person who is appointed by a court to manage the estate of a protected person and includes a limited conservator, temporary conservator and special conservator.
• (3) ''Court'', the probate and family court department of the trial court and includes the district court and juvenile court departments of the trial court in proceedings relating to the appointment of guardians of minors when the subject of the proceeding is a minor and there is proceeding before such district or juvenile court.
• (4) ''Disability'', cause for a protective order as described in section 5–401.
• (5) ''Estate'', includes the property of the person whose affairs are subject to this article.
• (6) ''Guardian'', a person who has qualified as a guardian of a minor or incapacitated person pursuant to court appointment and includes a limited guardian, special guardian and temporary guardian, but excludes one who is merely a guardian ad litem.
• (7) ''Guardian ad litem'', a person or organization appointed under sections 1–404 and 5–106 of this code.
• (8) ''Health care proxy'', a health care proxy executed pursuant to chapter 201D, a durable power of attorney for health care executed prior to the enactment of chapter 201D and similar instruments for appointment of health care agents executed in accordance with the laws of other jurisdictions.
• (9) ''Incapacitated person'', an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.
• (10) ''Lease'', includes an oil, gas, or other mineral lease.
• (11) ''Letters'', includes certificate of guardianship and certificate of conservatorship.
• (12) ''Mentally retarded person'', an individual who has a substantial limitation in present functioning beginning before age 18, manifested by significantly subaverage intellectual functioning existing concurrently with related limitations in 2 or more of the following applicable adaptive skills areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functioning academics, leisure, and work.
• (13) ''Minor'', a person who is under 18 years of age.
• (14) ''Mortgage'', any conveyance, agreement, or arrangement in which property is used as collateral.
• (15) ''Nursing facility'', an institution or a distinct part of an institution which is primarily engaged in providing to residents: (i) skilled nursing care and related services for residents who require medical or nursing care; (ii) rehabilitation services for the rehabilitation of injured, disabled or sick persons; or (iii) on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services, above the level of room and board, which can be made available to that individual only through institutional facilities that are not primarily a mental health facility or developmentally disabled facility; provided however, that the term nursing facility shall not apply with regard to the placement or transfer of a patient to a facility that is (i) licensed by the department of public health, under section 51 of chapter 111, as a long term acute care hospital or inpatient rehabilitation facility; (ii) licensed by the department of public health, under section 71 of chapter 111, as a rest home; or (iii) licensed or certified as an assisted living residence by the executive office of aging and independence under 651 CMR 12.00 et seq.
• (16) ''Organization'', includes a corporation, business trust, estate, trust, partnership, association, 2 or more persons having a joint or common interest, government, governmental subdivision or agency, or any other legal entity.
• (17) ''Parent'', a natural or adoptive parent other than a parent whose parental rights have been terminated or a parent who has signed a voluntary surrender.
• (18) ''Person'', an individual or an organization.
• (19) ''Petition'', a written request to the court for an order after notice.
• (20) ''Proceeding'', includes action at law and suit in equity.
• (21) ''Property'', includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
• (22) ''Protected person'', a minor or other person for whom a conservator has been appointed or other protective order has been made as provided in sections 5–407, 5–408 and Article 5A.
• (23) ''Protective proceeding'', a proceeding under the provisions of part 4 of this article.
• (231/2) ''Respondent'', an individual for whom the appointment of a guardian or conservator or other protective order is sought.
• (24) ''Security'', includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase any of the foregoing.
• (25) ''Ward'', a person for whom a guardian has been appointed solely because of minority.

Comment

Proceedings seeking appointment of a personal guardian for a minor without other disability as described in §§ 5-204 et seq. are somewhat less complicated, though formal in the sense that adjudications following notice and hearings are involved. The Code does not contemplate use in connection with guardianships and other protective proceedings of “summary” or “informal” proceedings of the sort utilized in decedent estate settlements for non-adjudicated probate of wills and appointment of personal representatives.

When read with § 5-407(f), the defined term “disability” plainly does not refer to lack of legal capacity, but only to the grounds described in warranting a protective proceeding as described in § 5-401.

The definition of “incapacitated person” supplies the substantive grounds for appointment of a guardian for reasons other than minority. See § 5-306(b).

The definition of “parent” is intended to include an adoptive parent, because an adoptive parent is eligible to inherit as a parent in intestate succession under the Uniform Probate Code and most statutes governing adoptions. The defined meaning of “parent” is especially significant when read with §§ 5-202(f) and 5-203 which prevent the appointment of a guardian of a minor, other than a temporary guardian under § 5-204(b), for whom a parent still has custodial rights.

The terms “ward,” “incapacitated person” and “protected person” help distinguish persons over whom another holds personal, custodial authority from those whose property, or some part thereof, has been ordered into a statutory trusteeship or otherwise subjected to a protective court order. For instance, a minor for whom a guardian has been named and whose property is the subject of a conservatorship or other protective order is both a ward and a protected person.

Massachusetts comment

Conservator is not specifically defined in Massachusetts law except as a caretaker for specific disabilities under G.L. c. 201, § 16.

Disability as used in § 5-401 encompasses all of the classes for which conservators have been appointed in Massachusetts

Guardian would have a more specific meaning under the UPC than has been considered under present Massachusetts law.

Incapacitated person follows the definition set out in the Uniform Guardianship and Protective Proceedings Act, March 1997 draft and offers a more specific definition than has been used in the Massachusetts statutes.

Mentally Retarded is included to aid in determining when a clinical team report is appropriate under § 5-303(b)(11). Note that mental retardation alone is no longer a sufficient basis for appointment of a guardian. A mentally retarded person may not be incapacitated to a degree necessitating a guardianship.

Chapter 140 of the Acts of 2012 revised the definition of Nursing facility.

Chapter 140 of the Acts of 2012 added the definition of Respondent.

Visitors as proposed by the UPC have not been retained. Massachusetts practice has been to appoint either a Family Service Officer, Court Clinic, or Guardian Ad Litem as appropriate in the particular situation. These appointments do not conflict with the term “Visitor” and can fulfill the same function.

Last updated:	January 9, 2025