The Uniform Probate Code In Court

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THE UNIFORM PROBATE CODE In Court Pt. 2 off a Series with specific Interpretation for Massachusetts Elder Law.

Presented by Steven M. Cohen, Boston Medicare Attorney, Boston, Raynham and Andover Massachusetts.

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The Uniform Probate Code In Court

  1. 1. THE UNIFORM PROBATE CODE In Court Pt. 2 of a Series Specific Interpretation for Massachusetts Elder Law Steven M. Cohen, Esq. Cohen & Oalican, LLP 18 Tremont Street - Suite 903 Boston, MA 02108 (617) 263-1035
  2. 2. Court Documents - Medical Certificate <ul><li>Since July, 2008 (almost a year before the implementation of the UPC,) the probate courts have been using more detailed medical certificates. </li></ul><ul><li>This is an important change, as the Medical certificate is often the only evidence presented regarding the individual’s impairments. </li></ul><ul><li>In the past, doctors provided little helpful information with the old certificate form. </li></ul><ul><li>The new form now requires that the physician state why a limited or full guardianship is appropriate. </li></ul><ul><li>Among other information, doctors must now provide: </li></ul><ul><li>clinical diagnosis; detailed description of cognitive and emotional functioning; detailing every day functioning and the level of care required. </li></ul>
  3. 3. Court Documents - Medical Certificate <ul><li>It is important to note, that in most instances the doctor will need to complete two medical certificates. </li></ul><ul><li>A first certificate must be filed in court along with the petition to start the legal proceeding. </li></ul><ul><li>In addition, because the certificate has to be dated within thirty days of the court hearing, and because its next to impossible to get into court within 30 days of filing the court documents a second certificate will be necessary. </li></ul><ul><li>In the even that a second certificate is necessary, the doctor will need to see the patient again and complete the form right before the court hearing. </li></ul>
  4. 4. Court Documents - Medical Certificate <ul><li>Finally, the certificate now assumes that the individual should attend the hearing and if they can’t the doctor has to explain why. </li></ul><ul><li>Although the new medical certificate form will enable judges to better craft a limited appointment that specifically suits the individuals needs, this comes at a cost, literally and figuratively. </li></ul><ul><li>Physicians have always been reluctant to spend much time with these forms. </li></ul><ul><li>Now many physicians are charging large fees to complete medical certificates (and as described below often two certificates are required) and this places an additional burden on families. </li></ul>
  5. 5. Court Documents - Petitions <ul><li>Under the new law, in many proceedings two petitions need to be filed. </li></ul><ul><li>There is a separate petition seeking appointment of guardian to make medical decisions and another petition seeking appointment of a conservator of the property. </li></ul><ul><li>Now the patient and any interested person may now petition for guardianship. </li></ul><ul><li>Previously, the patient was not allowed to petition for their own guardianship. </li></ul>
  6. 6. Court Documents - Petitions <ul><li>The new petitions for guardianship and conservatorship require those seeking appointment to provide additional information to the court. </li></ul><ul><li>You must now make the court aware whether there is a representative payee, health care proxy or durable power of attorney in place (attaching copies of the documents if they exist). </li></ul><ul><li>Also the court wants to know who has been taking care of the individual for the last sixty days. </li></ul><ul><li>Lastly, the new petitions include a request for the authority to admit to a nursing home. </li></ul><ul><li>This is an important new requirement for guardians. </li></ul><ul><li>However, if a health care proxy is in place they still have authority to admit to a nursing home. </li></ul>
  7. 7. Court Procedures - Right to Counsel <ul><li>Under the new statute, the court, at its discretion, may appoint an attorney to represent the incapacitated person. </li></ul><ul><li>The judge may appoint counsel at the request of the incapacitated person or someone else on his or her behalf if the judge believes that the person’s interests are not adequately represented. </li></ul><ul><li>In the past, the court only appointed an attorney to represent the individual where a proposed guardian was seeking extraordinary medical authority (such as Rogers powers). </li></ul><ul><li>Although this right to counsel provides additional protections to incapacitated persons, it may also delay the appointment of temporary guardians and add to the legal costs. </li></ul>
  8. 8. Court Procedures – Where To File <ul><li>The choice of which court to file a guardianship - conservatorship has been expanded to include in cases where a parent or spouse has nominated a guardian in their will, the county where the will was our could have been filed. </li></ul><ul><li>This is in addition to the county where the individual lives. </li></ul><ul><li>The courts are now directed to appoint an attorney if it determines of the person may be inadequately represented or if the person or someone on their behalf requests that an attorney be appointed. </li></ul>
  9. 9. Court Procedures – Notice <ul><li>Whoever is seeking guardianship or conservatorship has to give notice of the proceeding to certain individuals. </li></ul><ul><li>Previously, the alleged incapacitated person got notice, along with their spouse and children, or if none, parents, brothers and sisters. </li></ul><ul><li>Under the UPC, the courts now require that additional people receive notice: anyone appointed under a power of attorney or health care proxy; anyone who has been living with the individual or anyone else named in the petition. </li></ul>
  10. 10. Court Procedures – Temporary Guardians <ul><li>Previously, it was necessary to provide only three days of notice to the incapacitated person and their heirs-at-law. </li></ul><ul><li>Under the new rules anyone seeking temporary appointment of a guardian or conservator must provide seven days of notice. </li></ul><ul><li>As always, in a true emergency, the judge has discretion to waive the notice requirements and appoint a guardian or conservator immediately. </li></ul>
  11. 11. Court Procedures – Priority of Appointment <ul><li>The new statute directs judges to consider prioritizing the order of who should be appointed guardian or conservator. </li></ul><ul><li>First, anyone named as agent under a durable power of attorney. </li></ul><ul><li>Second, the spouse of the incapacitated person or a person nominated by will of a deceased spouse (or other writing of the spouse notarized and witnessed). </li></ul><ul><li>Third a parent of the person or a person nominated in the parents will or other writing. In the case of a conservator, the court shall also consider who the protected person would like to appoint (if they have sufficient capacity to make an “intelligent choice”). </li></ul><ul><li>The court is directed to consider this order of priority but the judge is not required to follow it if the court believes someone else would be best suited to serve as guardian or conservator. </li></ul>
  12. 12. Commitment Proceedings <ul><li>These cases will be heard in Superior Court. </li></ul><ul><li>They will no longer be heard in Probate Court. </li></ul>
  13. 13. Powers - Admit to Nursing Home <ul><li>There is the most important change regarding powers of guardians. </li></ul><ul><li>Under the UPC, a guardian cannot admit an incapacitated person to a nursing home without a specific finding by the court that the admission is in the person’s best interest. </li></ul><ul><li>A health care agent would still have the authority to admit to a nursing home. </li></ul>
  14. 14. Health Care Proxy vs. Guardians <ul><li>The UPC clarifies that if there is a valid health care proxy in place, decisions made by the health care agent take precedence over those of a guardian. </li></ul><ul><li>In addition, a guardian cannot revoke a health care proxy without court authority. </li></ul><ul><li>However, a conservator can revoke a durable power of attorney and a conservator’s decisions take precedence over the attorney in fact. </li></ul>
  15. 15. Monitoring - Responsibilities <ul><li>Guardians must now maintain “sufficient contact with the person to know of his or her capacities, limitations, needs, opportunities and physical and mental health”. </li></ul><ul><li>Arguably this was true under the old guardianship statue, having it stated clearly is an important change to the statute. </li></ul><ul><li>Although guardians now only deal with the person, if there is no conservator in place a guardian take care of the person’s personal property and commence a conservatorship proceeding if necessary to protect their property. </li></ul>
  16. 16. Monitoring - Reports <ul><li>In the past, courts have only been involved in keeping track of the incapacitated person’s finances. </li></ul><ul><li>Specifically, guardians and conservators were required to file annual accountings to show how they were managing the funds. </li></ul><ul><li>The UPC directs the probate courts to create a new system to monitor guardians. </li></ul><ul><li>Guardians are now required to file a report within sixty days of their appointment describing the person’s condition, living arrangements, what the guardian has done on behalf of the person, plans for future care and whether the guardianship should continue. </li></ul><ul><li>The guardian is required to then file these reports on an annual basis. </li></ul><ul><li>It remains to be seen how the courts will monitor whether these reports are being filed. </li></ul>
  17. 17. Monitoring - Special Guardians <ul><li>If a guardian is not meeting his or her obligations and the incapacitated person is at risk, the court has the authority to appoint a “special guardian” to take over as the patient’s guardian for up to ninety days or longer if necessary. </li></ul>
  18. 18. THE UNIFORM PROBATE CODE Steven M. Cohen, Esq. Cohen & Oalican, LLP 18 Tremont Street - Suite 903 Boston, MA 02108 (617) 263-1035

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