MUPC Article V procedural outline - D. Filing of petition

The contents of this outline are intended to provide general guidance to Court staff in the handling of guardianship of incapacitated persons and conservatorship cases. This outline does not cover guardianship of minors matters.

1. Who may file
   1. Guardianship Actions: 5303(a)
      “An incapacitated person or any person interested in the welfare of the person alleged to be incapacitated may petition for a determination of incapacity.”
   2. Conservatorship Actions: 5404(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.”
   3. A person is defined as an individual or an organization. 5101(18).
2. Irregular Petitions
   If a Petitioner insists on filing a Petition that is incomplete or otherwise irregular on its face, it shall still be taken in for filing but a Motion must be immediately presented to the Court. The Court may:
   1. Accept the Petition as filed;
   2. Issue an order regarding the Petition (i.e. requiring the Petitioner to amend the Petition by a date certain and set a review date); or
   3. Dismiss the Petition after hearing.

3. Health Care Proxy (HCP)/Durable Powers of Attorney: 5303(b)(9)
   HCP and DPOA must be filed with the Petition if available. If either of these documents contains personal identifying information (such as a date of birth, social security number or investment account numbers), the Petitioner should redact this information.

   In a guardianship proceeding, if the alleged incapacitated person has a HCP and the agent is the person being proposed as guardian, it should be suggested to Petitioner’s counsel that a General Petition to Determine the Validity of the HCP Pursuant to G.L. c.201D, sec. 17 might more appropriately address the alleged incapacitated person’s needs without having to resort to guardianship.

   Notwithstanding the fact that the proposed guardian is the Health Care Agent, a Petition for Guardianship may be filed.

   The Petition for Guardianship may include a prayer pursuant to G.L. c. 201D, sec 17 to determine that a Health Care Proxy is invalid or should be limited; that the agent should be removed; or that a health care decision should be overridden.

   The Petition may also include a prayer to revoke the authority of the Health Care Agent.

4. Medical Certificate/Clinical Team Report: 5303(a), (b)(11), (c) & (d); 5404(11)
   1. Must be filed with the Petition for Guardianship and/or the Petition for Conservatorship or be on file with the Court. If a Petition for Guardianship and/or a Petition for Conservatorship are received in the mail without a Medical Certificate or a Clinical Team Report, it should be returned to the Petitioner or Petitioner’s counsel with information stating that a Medical Certificate or Clinical Team Report must be filed or a motion immediately presented to the Court in accordance with subsection (f) below.
   2. If a Petition for a Guardianship and a Petition for Conservatorship are both filed for the same individual, one Medical Certificate may be filed provided that the date of exam is timely for both Petitions. The Medical Certificate or Clinical Team Report will be filed in one case file and a statement that it is on file with the Court (including the docket number) will be included with the Petition for the other case.
   3. Date of exam must be timely.
      1. For Medical Certificate: exam must have taken place within 30 days of the day the petition is filed; or
      2. For a Clinical Team Report: exam must have taken place within 180 days of the day the petition is filed;
   4. The Medical Certificate must be signed by a registered physician, a licensed psychologist or a certified psychiatric nurse clinical specialist.
   5. The Clinical Team Report must be signed by a physician, a licensed psychologist and a social worker. A psychiatric nurse clinical specialist may not sign the Clinical Team Report.
   6. If the Medical Certificate or Clinical Team Report does not meet the abovestated requirements or is otherwise irregular on its face, the Petition may be filed but a Motion must be immediately presented to either allow for the Medical Certificate or Clinical Team Report to be filed late or to accept the irregular Medical Certificate or Clinical Team Report.
      1. The Petitioner must file an Affidavit in support of the motion;
      2. If seeking to file late, the Petitioner must show circumstances which make it impossible to timely obtain the Medical Certificate or Clinical Team Report.
      3. If seeking to file an irregular Medical Certificate or Clinical Team Report, the Petitioner must adequately explain the irregularity.
      4. If the motion is allowed, the Court shall designate a specific date when the Medical Certificate shall be filed or designate that a R. 35 motion must be presented. A review date shall be set to insure said filing.
         1. If Medical Certificate or Clinical Team Report is not filed by the date designated by the Court or if R. 35 motion is denied, the Petition shall be dismissed.
      5. If the motion is denied, the Petition shall be dismissed. This dismissal shall generally not be vacated at a later date. Instead, the Petitioner will be required to file a new Petition.
      6. If a Petition for Conservatorship is filed for a minor, no Medical Certificate or Clinical Team Report is necessary. See Standing Order 0509.
      7. If a Petition for Conservatorship is brought by the person to be protected/Respondent on his or her own behalf (similar to the old “voluntary conservatorships”), a motion to waive the Medical Certificate may be filed and presented.
5. Filing fees
   1. The Uniform Fee Schedule indicates which fees are statutory and which are set by the Administrative Office. Most of the Guardianship and Conservatorship fees are statutory.
   2. Since Petitions for Guardianship over a person’s estate have been eliminated, all Petitions relating to Guardianships will have no fee.
   3. Petitions relating to Conservatorships will continue to require payment of a fee except for the Petition for Resignation or Termination.
   4. The Petition to Remove a Fiduciary will only have a fee associated if the fiduciary is a conservator, not a guardian.
   5. A Guardianship Bond without Sureties will have no associated fee. All other Bonds, i.e. Guardianship with sureties, Conservatorship without sureties and Conservatorship with sureties, will have an associated fee.
   6. There is a new charge for Letters of Foreign Conservator.