THE UNIFORM PROBATE CODE Steven M. Cohen, Esq. Cohen & Oalican, LLP 18 Tremont Street - Suite 903 Boston, MA 02108 (617) 263-1035

WELCOME TO THE UNIFORM PROBATE CODE Article V of the Uniform Probate Code (the UPC) was put into effect on July 1, 2009. The purpose of the UPC is to try to improve legal proceedings for incapacitated persons. These improvements address outdated terminology, shortfalls in protecting the legal rights of incapacitated persons and lack of monitoring by the courts. The statute embraces the basic idea that there are many degrees of incapacity and that the courts should carefully tailor the appointment of a guardian or conservator to the specific needs of the individual.

Article V of the Uniform Probate Code (the UPC) was put into effect on July 1, 2009. The purpose of the UPC is to try to improve legal proceedings for incapacitated persons.

These improvements address outdated terminology, shortfalls in protecting the legal rights of incapacitated persons and lack of monitoring by the courts.

The statute embraces the basic idea that there are many degrees of incapacity and that the courts should carefully tailor the appointment of a guardian or conservator to the specific needs of the individual.

WELCOME TO THE UNIFORM PROBATE CODE The UPC instructs the courts to favor limited guardianships whenever possible. Although the law attempts to provide better court oversight for guardians and conservators with a new monitoring system, it remains to be seen whether this will be more true in theory than in practice. Regardless, all of the new changes reflect additional sensitivity and respect for individuals who are unable to manage their personal and financial affairs.

The UPC instructs the courts to favor limited guardianships whenever possible. Although the law attempts to provide better court oversight for guardians and conservators with a new monitoring system, it remains to be seen whether this will be more true in theory than in practice.

Regardless, all of the new changes reflect additional sensitivity and respect for individuals who are unable to manage their personal and financial affairs.

Terminology The UPC has revised some of the outdated terminology used under our old guardianship statute. The new definitions provide more meaningful descriptions which are more consistent with the purpose of the statute. Below are some of the more important changes.

The UPC has revised some of the outdated terminology used under our old guardianship statute.

The new definitions provide more meaningful descriptions which are more consistent with the purpose of the statute.

Below are some of the more important changes.

Guardians/Conservators Under the old statute a guardian could be appointed over both the person and the property. Now under the UPC, guardians only have authority over the person and conservators only have authority of the estate. The UPC has eliminated guardians of property. Article V provides separate parallel sections describing the powers and responsibilities of both guardians and conservators.

Under the old statute a guardian could be appointed over both the person and the property.

Now under the UPC, guardians only have authority over the person and conservators only have authority of the estate.

The UPC has eliminated guardians of property.

Article V provides separate parallel sections describing the powers and responsibilities of both guardians and conservators.

Incompetent / Incapacitated / Protected Person Under the old statute, the court appointed a guardian or conservator if it found that the individual was “incompetent”. Now the court focuses on functional limitations instead. Specifically, the court looks to the person’s ability to process information and how that relates to their ability to make personal or financial decisions. A Guardian is appointed for an incapacitated person and a conservator is appointed for a protected person.

Under the old statute, the court appointed a guardian or conservator if it found that the individual was “incompetent”.

Now the court focuses on functional limitations instead. Specifically, the court looks to the person’s ability to process information and how that relates to their ability to make personal or financial decisions.

A Guardian is appointed for an incapacitated person and a conservator is appointed for a protected person.

Incompetent / Incapacitated / Protected Person An Incapacitated person is a an individual who has as “clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for health, safety, self care, even with appropriate technological assistance.” The term “ward” used to be used for anyone who had a guardian or conservator. Now ward is limited to a minor who has a guardian appointed. The elimination of the term incompetent, hopefully will remove some of the stigma from this process.

An Incapacitated person is a an individual who has as “clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for health, safety, self care, even with appropriate technological assistance.”

The term “ward” used to be used for anyone who had a guardian or conservator.

Now ward is limited to a minor who has a guardian appointed.

The elimination of the term incompetent, hopefully will remove some of the stigma from this process.

THE UNIFORM PROBATE CODE – TERMINOLOGY Pt. 1 of a series Steven M. Cohen, Esq. Cohen & Oalican, LLP 18 Tremont Street - Suite 903 Boston, MA 02108 (617) 263-1035