Section 305
(a)
If the court determines that an interest is not represented under this article or that the otherwise available representation might be inadequate, the court may appoint a guardian ad litem to receive notice, give consent and otherwise represent, bind and act on behalf of a minor, incapacitated or unborn individual or a person whose identity or location is unknown. A guardian ad litem may be appointed to represent several persons or interests.
(b)
A guardian ad litem may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.
(c)
In making decisions, a guardian ad litem may consider general benefit accruing to the living members of the individual's family.
Procedural advisory commentary (2013)
Practice note
Subsections (b) and (c) above are new concepts and new law. Subsection (b) provides that a proceeding may be commenced for the sole purpose of requesting the appointment of a GAL to represent persons who lack legal capacity regardless of whether or not a judicial proceeding is pending.
Subsection (c) represents a substantial change to current Massachusetts practice for an appointed GAL. In making decisions, a GAL appointed under the MUTC may now consider interests beyond that of the person he or she represents. For a list of fee generating categories, including category D appointments under this section, refer to Fee generating appointments in the Probate and Family Court.
Form update
To request the appointment of a GAL under § 305(b) when a petition is not otherwise pending, a General Trust Petition for Appointment of a Guardian ad Litem (MPC 351) and a proposed Decree and Order on General Trust Petition Appointing a Guardian ad Litem (MPC 777) may be filed. The filing fee for the petition is $375.00. If the petition is the first or initial action filed in the court, a surcharge of $15.00 shall also be assessed. A citation is not required unless a minor, incapacitated or protected person is the subject of the appointment or unless ordered by the court. A citation shall be served upon a minor, incapacitated or protected person and his/her guardian or conservator, if appointed, or parent if no guardian or conservator is appointed to represent a minor’s interest, but need not be served on other interested persons. The filing fee for a citation is an additional $15.00.
If a petition is pending, a motion requesting the appointment of a GAL may be filed. There is no fee for the filing of a motion.
A GAL appointed under § 305(b) shall be appointed in accordance with the procedure in place for fee generating appointments. See generally, Supreme Judicial Court Rule 1:07. Upon allowance of the petition or motion, the court shall issue an Appointment of a Guardian ad Litem form (PFC) to the appointee.
Practice note
A GAL appointed under § 305(b) shall not be required to file a report with the court unless otherwise ordered. A GAL shall accept an appointment by acknowledging his/her acceptance on the Appointment of Guardian ad Litem form (PFC). A GAL appointed under § 305(b) shall be required to adhere to Supreme Judicial Court Rule 1:07(7) by the filing of a Statement of Payment prior to payment. A GAL appointed under § 305(b) shall be paid from the trust estate.