Section 5-404
(a)
The person to be protected or any person who is interested in the estate, affairs, or welfare of the person, including a parent, guardian, custodian, or any person who would be adversely affected by lack of effective management of the person's property and business affairs may petition for a determination of disability, in whole or in part, and the appointment of a conservator or for other appropriate protective order.
(b)
The petition shall set forth the petitioner's name, residence address, current street address if different, relationship to the person to be protected, and interest in the appointment or other protective order, and, to the extent known, state the following with respect to the person to be protected and the relief requested:
- (1) the name of the person to be protected, his age, principal residence, current street address, and, if different, the address of the dwelling where it is proposed that the person to be protected will reside if the appointment is made, and the date residence was established;
- (2) a brief description of the nature of the alleged incapacity;
- (3) if the petition is being brought because the individual is detained or is otherwise unable to return to the United States, a statement of the relevant circumstances, including the time and nature of the detention or inability to return and a description of any search or inquiry concerning the person's whereabouts;
- (4) the name and address of the person's:
- (A) spouse; and
- (B) adult children, or if none, parents and adult brothers and sisters, or, if none, heirs apparent or presumptive;
- (5) the name and address of the person who has care or custody of the person or with whom the person has resided during the 60 days, exclusive of any period of hospitalization or institutionalization, preceding the filing of the petition;
- (6) the name and address of any representative payee, trustee or custodian of a trust or custodianship of which the person to be protected is a beneficiary;
- (7) the name and address of any person nominated as conservator by the person to be protected under a durable power of attorney, if known to the petitioner, and the name and address of any guardian or conservator currently acting for him in the commonwealth or elsewhere;
- (8) the name and address of any agent designated under a durable power of attorney of which the person to be protected is the principal, if known to the petitioner, and the petitioner shall attach a copy of any such power of attorney, if available;
- (9) a general statement of the person's property with an estimate of its value, including any insurance, pension, and the source and amount of any anticipated income or receipts;
- (10) the reason why appointment of a conservator or other protective order is in the best interest of the person to be protected;
- (11) except for a conservatorship of a minor filed pursuant to section 5–401(b), a statement:
- (A) that a medical certificate conforming to section 5–303(c), dated within 30 days of the filing of the petition; provided that such medical certificate is based upon an examination of such minor that was conducted with 30 days of the filing of the petition or, in the case of a person alleged to be developmentally disabled, a clinical team report dated within 180 days of the filing of the petition, is in the possession of the court or accompanies the petition; or
- (B) of the nature of any circumstance which renders obtaining a medical certificate or clinical team report impossible, supported by affidavit or affidavits meeting the requirements set forth in Massachusetts Rule of Civil Procedure 4.1(h), in which case the court may waive or postpone the requirement of filing a medical certificate or clinical team report.
(c)
If the appointment of a conservator is requested, the petition shall also set forth to the extent known:
- (1) the name and address of the proposed conservator, his relationship to the person to be protected, the reason why he or she should be selected, and the basis of the claim, if any, for priority for appointment;
- (2) the name and address of any person nominated as conservator by the person to be protected if 14 or more years of age;
- (3) the type of conservatorship requested, and if a general conservatorship, the reason why a limited conservatorship is inappropriate, and if a limited conservatorship, the powers to be granted to the limited conservator or property to be placed under the conservator's control; and
(d)
Reasonable expenses incurred in any examination conducted pursuant to this section shall be paid by the petitioner, the estate of the person to be protected, or by the commonwealth as the court may determine.
Comment
Although the person to be protected can petition for the appointment of a conservator, the person should investigate the use of a durable power of attorney. The petition should list names and addresses of the spouse, domestic partner or companion and adult siblings or if none, heirs.
Massachusetts comment
Subsections (b) and (c) are taken from the ABA Senior Lawyers Division, Task Force on Guardianship Reform (Second Working Draft, January 27, 1994) and require more comprehensive information than past Massachusetts practice or the UPC version.
Subsection (d) makes applicable to conservatorship a provision which was apropos only to guardianship of the mentally retarded, G.L. c. 201, § 6A (f).
See § 5-303(c) for the requirements of a medical certificate. Although § 5-404(b)(11) requires in most cases the filing of a medical certificate with the petition, § 5-407(b) also requires that a certificate show an exam not more than 30 days prior to hearing. Thus, it is possible that a new certificate might have to be procured prior to hearing.
Medical certificates and clinical team reports are not required in conservatorships of minors. See new Standing Order 05-09.
Medical certificates may be made by physicians, certified psychiatric nurse specialists and licensed psychologists. See amended Uniform Practice XXII.
If it is impossible to obtain a medical certificate because the respondent will not submit to an exam, a motion pursuant to M.R.C.P. Rule 35 may be presented.
New Standing Order 01-09 provides that medical certificates, clinical team reports, treatment plans and medical affidavits will be impounded and not available for public inspection. A request of interested party to access impounded medical information may be made on a new form provided by the court (MPC 303). Interested parties may request impoundment of additional documents or the entire file under Trial Court Rule VIII, Uniform Rules on Impoundment Procedure. If a case is dismissed without a decree having entered, the entire file will be impounded.
Subsection (b)(8) has been altered to require disclosure of durable powers of attorney “if known to the petitioner.” This should not be understood to lessen the obligation of the petitioner and counsel to inquire as to the existence of such documents, especially in light of priorities of appointment under § 5-409.
Chapter 140 of the Acts of 2012 changed subsection (b)(11) to remove the requirement of a medical certificate for persons alleged to be mentally retarded (in which cases clinical team reports are a necessity) and in conservatorships of minors.