Massachusetts Adult Guardianship / Conservatorship Petition Package (MUPC Article V)

MASSACHUSETTS ADULT GUARDIANSHIP / CONSERVATORSHIP PETITION PACKAGE

Petition for Appointment of Guardian and / or Conservator for an Incapacitated Person under MUPC Article V

Statutory Framework: M.G.L. c. 190B, Article V (Massachusetts Uniform Probate Code).

Court of Jurisdiction: Probate and Family Court — Division for the county where the respondent resides.

Standard: Clear and convincing evidence of incapacity; least restrictive means (M.G.L. c. 190B, § 5-306).

Mandatory Forms (MPC series): Petition (MPC 120 / 218); Medical Certificate (MPC 400); Notice / Citation (MPC 460); Decree and Order (MPC 750 / 765); Bond (MPC 801); Inventory (MPC 854); Account (MPC 853); Guardian Report.

PART 1 — PRE-PETITION CHECKLIST

☐ Confirm respondent is a Massachusetts resident.

☐ Confirm proper venue: Probate and Family Court Division of county of respondent's residence.

☐ Identify whether petition is for Guardianship (person), Conservatorship (estate), or both.

☐ Identify type: General / Limited / Temporary.

☐ Identify whether respondent has an intellectual disability — this triggers the clinical team report requirement (M.G.L. c. 190B, § 5-303(d); 180-day report instead of 30-day medical certificate).

☐ Identify whether petition seeks Rogers authority (substituted judgment for administration of antipsychotic medication) — separate findings required (M.G.L. c. 190B, § 5-306A).

☐ Identify whether petition seeks authority to admit respondent to a nursing facility — separate findings and notices required (M.G.L. c. 190B, § 5-309(g)).

☐ Analyze less restrictive alternatives BEFORE filing (least restrictive standard — M.G.L. c. 190B, § 5-306):
☐ Durable power of attorney (M.G.L. c. 190B § 5-501 et seq.)
☐ Health care proxy (M.G.L. c. 201D)
☐ Representative payee
☐ Trust
☐ Supported decision-making
☐ Joint accounts / authorized signer

☐ Obtain Medical Certificate (MPC 400) dated within 30 days of filing (M.G.L. c. 190B, § 5-303(c)), signed by registered physician, certified psychiatric nurse clinical specialist, nurse practitioner, or licensed psychologist; OR if respondent has intellectual disability, a Clinical Team Report (MPC 402) dated within 180 days of filing.

☐ Determine bond requirement (M.G.L. c. 190B, § 5-410).

☐ Identify all persons entitled to notice (M.G.L. c. 190B, § 5-304).

☐ Prepare and file Petition (MPC 120 for guardian of incapacitated person; MPC 218 for conservator).

☐ Request issuance of Citation (MPC 460).

PART 2 — VERIFIED PETITION (MPC 120 / MPC 218)

COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT — PROBATE AND FAMILY COURT
[__________] DIVISION
Docket No. [____________________]

VERIFIED PETITION FOR APPOINTMENT OF GUARDIAN AND / OR CONSERVATOR OF AN INCAPACITATED PERSON

(M.G.L. c. 190B, §§ 5-303, 5-404)

1. Petitioner.
(a) Name: [____________________________________]
(b) Residence and address: [____________________________________]
(c) Relationship to Respondent: [____________________]
(d) Interest in appointment: [____________________]

2. Respondent (Person Alleged to Be Incapacitated).
(a) Name: [____________________]
(b) Age / date of birth: [____] / [__/__/____]
(c) Residence and address: [____________________________________]
(d) Date residence was established: [__/__/____]

3. Place Respondent Will Reside if Appointment Is Made: [____________________________________]

4. Nature of Alleged Incapacity (brief description):
[____________________________________]

Check all that apply:
☐ Respondent is alleged to have an intellectual disability (triggers Clinical Team Report — § 5-303(d))
☐ Petitioner seeks court authorization for treatment requiring substituted judgment (Rogers / antipsychotic medication — § 5-306A)
☐ Petitioner seeks court authorization to admit Respondent to a nursing facility — § 5-309(g)

5. Proposed Guardian / Conservator.
(a) Name: [____________________________________]
(b) Address: [____________________________________]
(c) Relationship to Respondent: [____________________]
(d) Reason for selection: [____________________]
(e) Claim of priority for appointment, if any: [____________________]

6. Family / Interested Persons (§ 5-303(b)(5)). To the extent known with reasonable diligence:

7. Care or Custody (60-day rule — § 5-303(b)(6)). Name and address of person who has care or custody of Respondent, or with whom Respondent has resided during the 60 days preceding filing (excluding hospitalization / institutionalization):
[____________________________________]

8. Representative Payee (if any): [____________________]

9. Existing Guardian / Conservator in Massachusetts or elsewhere: [____________________]
Any guardian nominated by Respondent: [____________________]

10. Existing Agents (POA / HCP). Name and address of any agent under a durable power of attorney or health care proxy (M.G.L. c. 201D):
[____________________________________]
☐ Copy of POA / HCP attached.

11. Reason Guardianship Is Necessary; Type Requested.
☐ General guardianship — Petitioner states why limited guardianship is inappropriate: [____________________]
☐ Limited guardianship — specific powers requested: [____________________]
☐ Conservatorship (general)
☐ Limited conservatorship — specific authority: [____________________]
☐ Temporary guardian / conservator (§ 5-308 / § 5-408)

12. Medical Certificate / Clinical Team Report Statement (§ 5-303(b)(11)):
☐ A Medical Certificate dated within 30 days of filing is filed with this Petition / in the possession of the Court.
☐ A Clinical Team Report dated within 180 days of filing is filed (for intellectual disability cases).
☐ It is impossible to obtain a Medical Certificate / Clinical Team Report; circumstances stated by affidavit per Mass. R. Civ. P. 4.1(h). The Court is requested to waive or postpone.

13. Estate of Respondent (§ 5-303(b)(12)). General statement and estimate:
(a) Real property: $[____________]
(b) Personal property: $[____________]
(c) Insurance: $[____________]
(d) Pension / Social Security / other income: $[____________]
(e) Total estimated value: $[____________]

WHEREFORE, Petitioner prays that the Court:
(a) Issue a Citation under § 5-304;
(b) Appoint counsel for Respondent under § 5-309 / Probate and Family Court Rule 29B;
(c) After hearing, find Respondent incapacitated (§ 5-306) and appoint [Proposed Guardian / Conservator] in the least restrictive manner;
(d) If applicable, enter a Rogers Order under § 5-306A authorizing substituted judgment for antipsychotic medication;
(e) Set bond under § 5-410;
(f) Issue Letters; and
(g) Grant such other relief as is just.

VERIFICATION: Signed under the pains and penalties of perjury this [____] day of [__________], 20[____].

[______________________________] Petitioner
[______________________________] Attorney for Petitioner / BBO No. [____________]

PART 3 — MEDICAL CERTIFICATE (MPC 400; M.G.L. c. 190B, § 5-303(c))

The Medical Certificate must be dated within 30 days before the filing of the Petition. Signed by a registered physician, certified psychiatric nurse clinical specialist, nurse practitioner, or licensed psychologist.

MEDICAL CERTIFICATE OF EXAMINING PROFESSIONAL

1. Examining Professional.
   (a) Name: [____________________________________]
   (b) Title / credentials: ☐ M.D. ☐ D.O. ☐ Psychiatric Nurse Clinical Specialist ☐ Nurse Practitioner ☐ Licensed Psychologist
   (c) License number / state: [____________________]
   (d) Address / phone: [____________________________________]
   (e) Date of examination: [__/__/____]

2. Description of Nature, Type, and Extent of Respondent's Specific Cognitive and Functional Limitations (§ 5-303(c)(1)):
   [____________________________________]

3. Evaluation of Respondent's Mental and Physical Condition, and if appropriate, educational potential, adaptive behavior, and social skills (§ 5-303(c)(2)):
   [____________________________________]

4. Prognosis for Improvement and Recommendation for Appropriate Treatment / Habilitation Plan (§ 5-303(c)(3)):
   [____________________________________]

5. Date of Examination on Which Report Is Based (§ 5-303(c)(4)): [__/__/____]

6. Medications: [____________________________________]

7. Opinion on Capacity in Specific Domains:

8. Recommendation on Need for Guardian / Conservator and Least Restrictive Alternatives: [____________________]

Signed: [______________________________] Date: [__/__/____]

CLINICAL TEAM REPORT (MPC 402) — INTELLECTUAL DISABILITY ONLY (§ 5-303(d))

If Respondent is alleged to have an intellectual disability, a Clinical Team Report by a team of (1) a physician, (2) a licensed psychologist, and (3) a social worker, each experienced in evaluating persons with intellectual disability, is required. Report must be dated within 180 days of filing.

Team conclusions: [____________________________________]

PART 4 — NOTICE / CITATION (MPC 460; M.G.L. c. 190B, § 5-304)

TO: [Name of Respondent] and all persons entitled to notice

Notice is hereby given that a Petition has been filed in the Probate and Family Court, [__________] Division, Docket No. [__________], seeking appointment of a guardian and / or conservator for [Name of Respondent].

A hearing has been scheduled for [__/__/____] at [____] [☐ a.m. ☐ p.m.] at [____________________________________].

Notice must be served on Respondent at least 14 days before the hearing. Notice must be in plain language and inform Respondent of:
- The nature of the proceeding;
- The rights at the hearing;
- The right to counsel (and that the Court will appoint counsel if Respondent is indigent — Probate and Family Court Rule 29B);
- The right to attend, present evidence, cross-examine witnesses;
- The consequences if a guardian or conservator is appointed.

Persons Entitled to Notice (§ 5-304)

If Respondent is a Veterans Administration beneficiary, notice to VA required.

If Respondent is a client of the Department of Developmental Services (DDS) or Department of Mental Health (DMH), notice to that agency required.

PART 5 — APPOINTMENT OF COUNSEL FOR RESPONDENT (M.G.L. c. 190B, § 5-309; Probate and Family Court Rule 29B; SJC Rule 1:07)

Respondent has the right to counsel at every stage of the proceeding. If Respondent does not have counsel, the Court SHALL appoint counsel from the list maintained pursuant to Probate and Family Court Rule 29B; compensation under SJC Rule 1:07.

☐ Request for appointment of counsel filed
☐ Affidavit of indigency (if applicable)
☐ Court order appointing counsel
☐ Counsel's role: ADVOCATE for Respondent's expressed wishes (NOT best-interest representation, unlike a GAL)

PART 6 — GUARDIAN AD LITEM (When Ordered by Court)

In appropriate cases (e.g., where Respondent cannot direct counsel), the Court may appoint a Guardian ad Litem to investigate and report.

GAL Duties:
☐ Visit Respondent
☐ Investigate the petition
☐ Investigate suitability of proposed guardian / conservator
☐ Consider less restrictive alternatives
☐ Report to the Court

PART 7 — LESS RESTRICTIVE ALTERNATIVE ANALYSIS

The Court must find by clear and convincing evidence that the appointment is the least restrictive form of intervention (M.G.L. c. 190B, § 5-306(b)).

PART 8 — BOND (M.G.L. c. 190B, § 5-410; MPC 801)

Bond required for conservator, generally with surety, in an amount equal to the value of the personal estate plus one year's anticipated income, unless modified by the Court.

☐ Bond amount: $[____________]
☐ Surety: ☐ With surety ☐ Without surety (basis: [____________])
☐ Restricted account in lieu of / reducing bond: [____________]

PART 9 — DECREE AND ORDER OF APPOINTMENT (MPC 750)

COMMONWEALTH OF MASSACHUSETTS, PROBATE AND FAMILY COURT, [__________] DIVISION
Docket No. [__________]

This matter came before the Court on [__/__/____] upon the Petition; the Medical Certificate / Clinical Team Report under M.G.L. c. 190B, § 5-303; the report of counsel for Respondent; and the evidence presented. The Court FINDS by CLEAR AND CONVINCING EVIDENCE:

(a) Notice was given as required by § 5-304;
(b) Respondent is an incapacitated person within the meaning of M.G.L. c. 190B, § 5-101(9);
(c) Respondent's needs cannot be met by less restrictive means, including the use of appropriate technological assistance, supported decision-making, or other alternatives; and
(d) The appointment is the least restrictive intervention.

DECREE AND ORDER:

1. [Name] is adjudicated an incapacitated person.
2. [Name] is appointed [☐ guardian ☐ conservator ☐ both] of [Name of Respondent].
3. The appointment is [☐ general ☐ limited, with the following specific powers and rights retained as set forth in Paragraph 4].
4. Specific powers granted: [____________________].
5. Rights retained by Respondent: [____________________].
6. Bond is set at $[____________] [☐ with ☐ without] surety.
7. Rogers Order (§ 5-306A): ☐ Granted — substituted judgment authorizes administration of [antipsychotic medication: ____________________] subject to annual treatment plan review; ☐ Not sought.
8. Authority to admit to nursing facility (§ 5-309(g)): ☐ Granted ☐ Not sought.
9. Guardian shall file a Guardian's Report annually under § 5-309A.
10. Conservator shall file Inventory (MPC 854) within 90 days under § 5-418, and annual Account (MPC 853) under § 5-419.
11. Letters of [Guardianship / Conservatorship] shall issue upon qualification (oath; bond).

[______________________________] Justice of the Probate and Family Court
Dated: [__/__/____]

PART 10 — LETTERS OF GUARDIANSHIP / CONSERVATORSHIP

Issued by the Register of Probate, [__________] Division, certifying the authority of [Name] to act as [guardian / conservator] of [Respondent], pursuant to the Decree entered [__/__/____].

[______________________________] Register of Probate

PART 11 — INVENTORY (MPC 854) AND ANNUAL ACCOUNTING (MPC 853) / GUARDIAN'S ANNUAL REPORT

Conservator's Inventory (M.G.L. c. 190B, § 5-418; due within 90 days of appointment):
☐ Real property at FMV
☐ Tangible personal property
☐ Bank, brokerage, retirement accounts
☐ Insurance, annuities
☐ Other assets
☐ Filed with court; copy to Respondent and interested parties

Conservator's Account (M.G.L. c. 190B, § 5-419; annually):
☐ Schedule A — Charges (beginning balance + receipts)
☐ Schedule B — Credits (disbursements)
☐ Schedule C — Distribution
☐ Ending balance
☐ Supporting documentation retained

Guardian's Annual Report (§ 5-309A):
☐ Current residence and living arrangement
☐ Health status / major medical events
☐ Major decisions
☐ Contact with Respondent (frequency, nature)
☐ Continued need for guardianship
☐ Recommendation regarding modification / termination

Rogers Treatment Plan Review (if Rogers order entered):
☐ Annual review of antipsychotic medication treatment plan
☐ Updated affidavit from treating clinician
☐ Continued substituted judgment finding by Court

SOURCES AND REFERENCES

• M.G.L. c. 190B, Article V — https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B
• Massachusetts Probate and Family Court — Guardianship & Conservatorship Forms (MPC series) — https://www.mass.gov/lists/probate-and-family-court-mupc-forms
• Probate and Family Court Rule 29B (Assignment of counsel)
• SJC Rule 1:07 (Fees of counsel and other appointees)
• Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) — substituted judgment standard for antipsychotic medication
• Guardianship Association of Massachusetts Registered Guardians (GAMRG)
• Massachusetts Office for Disabilities — Supported Decision-Making resources
• MUPC Effective Date: July 1, 2009 (St. 2008, c. 521)