How the Probate Court Process Works | MAMH

Find COVID-19 resources and guidance at Network of Care Massachusetts.

The Probate and Family Court has jurisdiction over most guardianships and conservatorships of adults.

Since the adoption of the Massachusetts Uniform Probate Code (MUPC), the court has promulgated many new guardianship forms and some very helpful instruction sheets. Many forms may be completed on-line and printed for filing.

Who may petition. Any person interested in the welfare of the person may petition for a guardian to be appointed. Chapter 190B § 5-303.

Petitions for conservatorship may be filed by the person to be protected, 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.” Chapter 190B 5-404(a).

What does the petition look like? The petitions for guardianships and conservatorships are available on the Probate Court website.

Medical certificates. All adult guardianship and conservatorship petitions (except for those for persons who have an intellectual disability) must be accompanied by a medical certificate signed by a physician, psychologist, certified psychiatric nurse clinical specialist or nurse practitioner. The medical certificate form is on the Probate Court website.

Clinicians can find useful instructions on how to complete the certificate also on the court website. The examination on which the conclusions in the medical certificate are based must have taken place within thirty days prior to the entry of each guardianship decree.

Appointment of counsel. Everyone for whom a guardian or conservator is being sought has the right to hire and be represented by a lawyer. In some cases, the court will appoint an attorney, paid for by the state. For example, if the guardian is seeking authority for psychotropic medication, that is, a Rogers order, appointment of counsel is mandatory. However, counsel is not appointed in every guardianship or conservatorship case. Rather, a lawyer must be appointed either (a) upon the request of the person subject to the petition or anyone on his or her behalf; or (b) the judge, on her own, may appoint counsel if the judge believes that the interests of the person are or may be inadequately represented. Chapter 190B § 5-106.

There is a court form for requesting appointment of a lawyer. Appointment may be made at any time during the case, even after a guardianship or conservatorship decree has issued.

Independent examinations. The person subject to the guardianship has a right to independent expert medical assistance. If the person cannot afford to pay, the state will cover the cost.

Hearings. Many guardianships and conservatorships are not contested. In those cases the court hearings tend to be fairly brief. Contested proceedings, on the other hand, are similar to other civil trials. Witnesses may include medical or other clinical experts, the person subject to the petition, family members, or other persons familiar with the person.

The person who is subject of the petition has a right to attend all court hearings. Chapter 190B § 5-106(c).

Determining competency. There is really no single test of capacity or competency in Massachusetts law. However, over the years case law has established some parameters. For example, neither institutionalization nor a clinical determination of mental illness is in itself enough for a finding of legal incompetency, Fazio v. Fazio, 375 Mass. 394, 378 N.E.2d 951 (1978), and just because a person does not act rationally in his or her own best interest is not enough, without more, to establish incompetence, Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978). Moreover, a person may be competent for one purpose even if incompetent for some other.

As previously noted, under Massachusetts law competency for the purposes of guardianship is based a functional assessment of the person’s ability to understand the information conveyed, evaluate the options, and communicate a decision.

The petitioner must prove the need for a guardian or conservator by a preponderance of the evidence. If the judge finds that the statutory elements have been established, the court may appoint a guardian or a conservator, or both.