Section 5-409
(a)
Subject to subsection (c), the court may appoint an individual or a corporation with general power to serve as trustee or conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:
- (1) Unless lack of qualification or other good cause dictates the contrary, a person nominated in the protected person's most recent durable power of attorney;
- (2) a conservator, guardian of property, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the protected person resides;
- (3) an individual or corporation nominated by the protected person 14 or more years of age and of sufficient mental capacity to make an intelligent choice;
- (4) an agent appointed by the protected person under a durable power of attorney;
- (5) a parent of the protected person, or any parental nominee; and
- (6) any person deemed appropriate by the court.
(b)
The court, acting in the best interest of the protected person, may pass over a person having priority and appoint a person having a lower priority or no priority.
(c)
An owner, operator, or employee of a long-term care institution at which the protected person is receiving care or a paid caretaker may not be appointed as conservator unless related to the protected person by blood, marriage, or adoption.
Comment
Priority for consideration of appointment as conservator is given first to the person's nominee or agent under a durable power of attorney, then to a fiduciary such as a conservator or guardian before preference is given to spouse or relatives. Paid care givers and anyone affiliated with a long-term care facility at which the person is receiving care is ineligible to be conservator absent a blood, marital or adoptive arrangement. Section (a) allows someone who has been nominated as conservator to have a statutory preference when the court determines who should be appointed as conservator of the person. However, the person so designated has no authority to act without a court order and must follow the procedures for the establishment of a conservatorship. The process for nominating a guardian is much more detailed because of the need to protect the person in such circumstances and because there are many mechanisms available to the nominating individual to protect the property besides a conservatorship. However, in some circumstances, conservatorship may be necessary, so it is incumbent on the appointed guardian to determine whether there is a need for a conservatorship, and if so, petition for appointment. A person named in a writing, will or otherwise, should be appointed unless not qualified.
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, § 16 which contained no priorities. Section 5-503 allows one to nominate a conservator in a durable power of attorney.