Attorney Gary Zalkin Explains Amendments Made To The Massachusetts Guardianship Laws

Online, May 17, 2010 (Newswire.com) - The new UPC laws have changed several facets of the guardianship and conservatorship laws in Massachusetts. Gary Zalkin, Counselor at law, shares the nine notable changes made to the guardianship and conservatorship laws:

1. Guardianship of the estate - Prior to July 1, 2009, a guardian could have the authority to make personal decisions, financial decisions or both for a ward, while a conservator only had authority to make financial decisions. Now the UPC limits a guardian's authority to personal decisions only; the conservator's authority is still restricted to financial decisions. It is important to note that the same person can serve as both guardian and conservator, but two separate petitions would need to be filed.

2. Spendthrift guardianship - Before the UPC, the court could appoint a spendthrift guardian for individuals who spent money unwisely because of "excessive drinking, gaming, idleness, or debauchery of any kind". These "spendthrift guardians" could be appointed without any medical documentation and could have authority over an individual's person and estate. However, the statute authorizing spendthrift guardianships was repealed and so it is no longer an option.

3. Authority to admit or commit to a mental health facility - In the past, the probate court could grant guardians the added authority to admit or commit the individual to a mental health facility. Similar to spendthrift guardianships discussed above, this authority no longer exists. However, psychiatric facilities can still ask the district court to commit individuals to their facilities, and concerned loved ones can ask police or psychiatric emergency services teams to bring an acutely ill individual to a hospital for an evaluation. Please note that although a guardian cannot admit or commit an individual to a mental health facility, a health care proxy agent may have that authority.

4. Authority to admit to a skilled nursing facility - Before July 1, 2009, virtually any guardian could admit their ward to a Skilled Nursing Facility ("SNF"). However, under the UPC a guardian must now have specific authority to do so. Only guardians appointed before July 1, who received the explicit authority from the court may still admit an individual to a SNF. However, individuals under guardianship who were admitted to a SNF prior to July 1, 2009, can remain in their facility as long as they stay in the same facility or, if they leave, go to an acute care hospital and then return directly to the same facility.

5. Appointment of counsel - prior to July 1, 2009, the court was only required to appoint counsel for individuals when a guardian sought extraordinary authority, such as the authority to consent to the administration of antipsychotic medication or the authority to admit or commit to a mental health facility. While the court could appoint counsel for other guardianship matters or for conservatorship matters if it wished, in practice that seldom happened in many counties. The UPC obligates courts to appoint counsel for any individual who is subject to a petition for guardianship or conservatorship if:

• The individual has requested counsel;
• Someone else makes the request on the individual's behalf; or,
• The court determines that the individual may not be adequately represented without counsel.

6. "Ward" -The UPC has also made a few changes to terminology. Adults are no longer called "wards." Instead, adult individuals under guardianship are called "incapacitated persons" and individuals under conservatorship are called "protected persons". The term "ward" is still used for minors under guardianship.

7. Health care proxy - prior to July 1, 2009, guardians had the authority to revoke an individual's health care proxy and make medical decisions on the individual's behalf. However, under the UPC the health care proxy agent retains the authority to make medical decisions for an incapacitated person. In order for a guardian's wishes to trump those of a health care proxy the court must specifically grant the guardian the authority to revoke the health care proxy.

8. Reports - In the past, only guardians with the authority to consent to the administration of antipsychotic medications were required to have their authority reviewed annually. Other types of guardians had little to no court oversight after their initial appointment. Now all guardians are required to file care plans after 60 days, and annually thereafter, describing the incapacitated person's status, needs and supports.

9. Accounting requirement - The court continues to require conservators to file annual reports, called accounts, detailing all funds spent and received on the protected person's behalf. There had been little oversight in tracking [I DON"T KNOW IF "little oversight in tracking" works - what do you think?] whether or not accounts were actually filed. The UPC directs courts to establish a system for monitoring accounts and it requires conservators to include much more information than they had in the past.

About Gary Zalkin, ESQ., LICSW:

Gary Zalkin brings 14 years of experience as a psychotherapist to his thoughtful practice of the law. He focuses on mental health law, advocating for families of those with mental illness and those with a mental illness themselves, as well as providing consultations to other attorneys.

Gary Zalkin graduated from Suffolk University Law School magna cum laude in 1999 as a member of the Suffolk Transnational Law Review. Attorney Zalkin received his B.A. in psychology from Brandeis University in 1989 and his M.S.W. from Simmons College of Social Work in 1992.

Attorney Zalkin has served as chair of the Riverside Community Care Human Rights Committee and as president of the board of the National Alliance for the Mentally Ill of Massachusetts, Metrowest affiliate.