Section 5-305
(a)
Any qualified person may be appointed guardian of an incapacitated person.
(b)
Unless lack of qualification or other good cause dictates the contrary, the court shall appoint a guardian in accordance with the incapacitated person's most recent nomination in a durable power of attorney.
(c)
Except as provided in subsection (b), the following, if suitable, are entitled to consideration for appointment in the order listed:
- (1) the spouse of the incapacitated person or a person nominated pursuant to subsection (b) of section 5–301;
- (2) a parent of the incapacitated person, or a person nominated pursuant to section 5–301; and
- (3) any person the court deems appropriate.
(d)
With respect to persons having equal priority, the court shall select the one it deems best suited to serve. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having a lower priority or no priority.
Comment
Subsection (a) limits those who may act as guardians for incapacitated persons to “qualified” persons. “Qualified” in its application to “persons” is not defined in this Article, meaning that an appointing court has considerable discretion regarding the suitability of an individual to serve as guardian for a particular ward. In exercising this discretion, the court should give careful consideration to the needs of the ward and to the experience or other qualifications of the applicant to react sensitively and positively to the ward's needs.
Subsections (b) and (c) govern priorities among persons who may seek appointment. Unless good cause or lack of qualification dictates otherwise, priority is with one nominated in an unrevoked power of attorney of the ward that remains effective though the ward has become incompetent since executing the power of attorney.
Massachusetts comment
The UPC hierarchy of priorities is not adopted as it may create an impediment to appointment of one better suited but of lesser standing. See G.L. c. 201, §§ 6, 6A and 6B which contain no priorities. Section 5-503 allows one to nominate a guardian in a durable power of attorney.
Chapter 140 of the Acts of 2012 replaced the phrase “by will of a deceased spouse or by other writing signed by the spouse and attested by at least 2 witnesses” with “pursuant to subsection (b) of 5-301” in subsection (c)(1).