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NEW MASSACHUSETTS UNIFORM PROBATE CODE GOES INTO EFFECT

     On March 31, 2012, Massachusetts joined a growing number of states in adopting the Massachusetts Uniform Probate Code (MUPC). The effects are far-reaching, as the Code not only affects Probate procedure - streamlining it and making it more informal, and less costly, but affects the actual disposition of assets in intestacy (non-will) situations. The law now gives a surviving spouse a fairer (larger) share of the assets, while taking into account the fact that many decedents had more than one marriage or family during their lives.

The stream-lined procedure will make estates easier and less costly to probate, but increases the need for professional advice, both in the estate planning stage, and in the administration of the estate to avoid conflicts and other problems. The streamlining of estates now not only makes Probate easier, but increases the possibility of abuse by the fiduciary, if unchecked by heirs who are unaware of their rights.

 

LIMITED GUARDIANSHIPS IN MASSACHUSETTS: NOW THE NORM

     A Guardianship is the imposition of an involuntary court-appointed decision-maker who takes control of one’s finances, estate, and daily decisions. Because of the all-encompassing authority this gave to a third party, it has been long believed that there should be some limits set, so that the Ward (the person who is the object of the guardianship) could retain as much freedom and dignity as possible.

     The Massachusetts legislature has in the past enacted laws that enabled people to choose their decision-makers should they become disabled in the future. These laws gave rise to the creation of Durable Powers of Attorney which allow someone to act in your behalf as to legal matters should you become disabled or unable to communicate, and Health Care Proxies, which allow trusted loved ones to make medical decisions for you if you are legally disabled, or unable to communicate. Together, if drafted carefully, these documents may make a future guardianship unnecessary, and are an integral part of estate planning which should be discussed when one consults with an attorney to draft a will. 

     Massachusetts Guardian statutes (Massachusetts General Laws Chapter 201) have historically been “all or nothing” in defining the scope of a guardianship: they have never specifically allowed, let alone endorsed the concept of a ‘limited guardianship’, defined as a guardianship for a limited purpose. The concept of a limited guardianship gained acceptance in this state through case law, when in 1979, the Massachusetts Appeals Court decided the case of Guardianship of Bassett, 7 Mass.App.Ct. 56 (1979). In that case, the Appeals Court upheld the decision of a Probate Court judge who ordered a guardianship plan for a ward who he determined was competent to handle “some but not all of his personal and financial affairs”. This was the seminal case which first made clear that a Probate Court judge may exercise “powers to appoint a guardian for limited purposes and with specified responsibilities” for someone who is found to be “partially incompetent”.

      On January 15, 2009, Governor Patrick signed into law the new Massachusetts Uniform Probate Code, making important and significant changes in both Probate Law and Procedure. The Guardianship provisions go into effect on July 1, 2009. Among the changes is the limitation of guardianships to care of the person only, with conservators to be appointed to manage the property, and the codification and preference for the use of limited guardianships and limited conservatorships in the future.

 

External Links:

(1/08/2013) PROBATE AND FAMILY COURT ANNOUNCES INTERNET ACCESS TO PUBLICLY AVAILABLE ESTATE AND ADMINISTRATION CASES

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