Section 5-202
(a)
A parent, by will or other writing signed by the parent and attested by at least 2 witnesses, may appoint a guardian for any minor child the parent has or may have in the future, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian.
(b)
A guardian, by will or other writing signed by the guardian and attested by at least 2 witnesses, may appoint a guardian for any minor child for whom the guardian serves, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian.
(c)
Upon petition of an appointing parent or guardian, upon finding that the appointing parent or guardian will likely become unable to care for the minor within 2 years or less, and after notice as provided in section 5–206(b), the court, before the appointment becomes effective, may confirm the parent's or guardian's selection of a guardian and terminate the rights of others under section 5–203.
(d)
Subject to section 5–203, the appointment of a guardian becomes effective on the first to occur of the appointing parent's or guardian's death, an adjudication that the parent or guardian is an incapacitated person, or a written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the minor unless the minor is in the care or custody of a person other than a parent pursuant to sections 24, 25, 26 and 39G of chapter 119, chapter 201; or section 3 of chapter 210.
(e)
Within 30 days after the appointment becomes effective, a guardian shall:
- (1) file a notice of acceptance of appointment and a copy of the will or other nominating instrument with the court of the county in which the will was or could be probated or, in the case of another nominating instrument, with the court of the county in which the minor resides; and
- (2) unless the appointment was previously confirmed by the court, petition the court for confirmation of the appointment, giving notice in the manner provided in section 5–206(b).
(f)
The parental appointment of a guardian shall not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged incapacitated has priority.
(g)
The powers of a guardian who timely complies with the requirements of subsection (e) relate back to give acts by the guardian which are of benefit to the minor and which occurred on or after the date the guardian was eligible to file an acceptance of office the same effect as those which occurred after the filing.
(h)
The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court, the revocation of the appointment by the appointing parent or guardian, or the filing of an objection pursuant to section 5–203.
Comment
This section has been revised by expanding the circumstances under which a parent can appoint a guardian to serve. It also provides for a guardian to appoint another to serve as the next guardian on the occurrence of a specified contingency. The number of contingencies has been increased from death to death, adjudication of incapacity or written determination by a physician that the parent or guardian is no longer able to care for a minor child.
In the case of a parent who has disappeared, relief should be sought under the emergency guardianship section § 5-204, with preference to the nominated guardian absent a showing that it is not in the best interest of the minor child for that person to be appointed.
Section (a) recognizes that the appointing parent may have additional children after making the appointment, so the language covers children that may be born, adopted or whose custody may be granted to the appointing parent, without the need to re-execute the nomination.
The nomination of a person as guardian is a rebuttable presumption that the nominated person should be appointed as guardian and the Court should not disregard the nomination without good cause.
The appointing parent or guardian has the option of either making the appointment in a nomination or petitioning the Court prior to the triggering event for confirmation of the appointment. Court confirmation terminates the right to object, but does not terminate the right of the appointing parent or guardian to revoke the appointment.
The purpose of the confirmation of appointment is to convert the nominated guardianship to a regular guardianship as soon as possible. The petition for confirmation of appointment to be filed by a guardian should include the name and address of the minor, the identity and whereabouts of all persons having parental rights or serving as guardian, the petitioner's name and address, relationship to the parent and child, interest in the appointment, information about any custody orders, and a statement of the petitioner's willingness to serve; any limitations placed by the appointing parent or guardian on the authority of the nominated guardian; information about the petitioner; and reasons why the appointment should be confirmed. The petition should be accompanied by a death certificate, an order of adjudication of incapacity or a written statement by the physician who has examined the appointing parent or guardian that the appointing parent or guardian is no longer able to care for the minor child. In this last case, the written statement should include the prognosis and diagnosis of the parent's or guardian's condition. The petition should be accompanied by a copy of the nominating instrument. If the selection as guardian was previously confirmed pursuant to subsection (c), a copy of the order of confirmation should accompany the petition.
In the hearing on the petition for confirmation, if the Court finds that the appointing parent or guardian will not regain the ability to care for the minor child, the Court should enter an order confirming the appointment, absent evidence rebutting the presumption of appointment. If the Court finds that the parent or guardian may regain ability to care for the minor child, the Court should enter an order confirming the appointment for a period of time deemed appropriate by the Court. An order of confirmation cuts off the right of the minor, the other parent or the person other than the parent having care and custody of the minor to object. The confirmation also supersedes the rights of the non-appointing parent.
Unless stated to the contrary in this section, other sections of this Article apply.
If a parent becomes incapacitated subsequent to the guardian's appointment becoming effective, at that time, the guardian's appointment supersedes the parental rights of the incapacitated parent.
The minor, the other parent or the person other than the parent having care and custody of the minor all have the right to file an objection under § 5-203 within a specified time period. If an objection is filed, the nominated guardian has no authority to act and instead must petition the Court for appointment as guardian under § 5-206. An objection that is not timely filed does not terminate the appointment.
Section (g) provides that any acts performed before filing relate back to cover the time between the appointment becoming effective and the guardian's filing of the notice of acceptance to give those acts occurring in that time frame the same effect as those occurring after the filing of the notice of acceptance, as long as those prior acts are beneficial to the minor.
Massachusetts comment
The UPC self-executing parental appointment of a guardian was at first not recommended by the Joint Committee. However, after enactment of Chapter 210 of 1995 adding sections 2A to 2H to G.L. c. 201, the Joint Committee reconsidered. The UPC version sets forth a clearer and simpler method for parental appointment without taxing scarce court resources. This and section 5-103 are intended to replace the standby emergency and short term emergency proxy provisions of G.L. c. 201 §§ 2A to 2H.
See also the Caregiver Authorization Affidavit under M.G.L. c. 201F enacted the same day as the Massachusetts Uniform Probate Code. By an affidavit a parent or guardian may grant concurrent rights to direct education and health care of a minor child.