HOUSE DOCKET, NO. 3832        FILED ON: 5/7/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3607

The Commonwealth of Massachusetts

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PRESENTED BY:

Angelo J. Puppolo, Jr.

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to temporary guardianship for a person alleged to be incapacitated.

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PETITION OF:

HOUSE DOCKET, NO. 3832        FILED ON: 5/7/2015

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3607

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act relative to temporary guardianship for a person alleged to be incapacitated.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 190B of the General Laws is hereby amended by inserting after section 5-308 the following section:-

Section 5-308A. (a) Any person interested in the welfare of the person who has no guardian and who is alleged to be incapacitated may petition the probate and family court, the district court or the superior court, which shall within 5 days, convene a tribunal to consist of a single justice of the probate and family court, the district court or the superior court, a physician licensed to practice medicine in the commonwealth pursuant to section 2 of chapter 112 and an attorney authorized to practice law in the commonwealth.  The physician shall be selected by the single justice from a list submitted by the Massachusetts Psychiatric Society. The list submitted to the single justice shall consist only of physicians who practice medicine outside the county where the petitioner resides. The attorney shall be selected by the single justice from a list submitted by the Massachusetts Bar Association. The attorney and physician shall, subject to appropriation, each be compensated in an amount to be approved by the chief justice of the trial court.

(b) A petition made pursuant to this section shall state: (1) the name and age of the person alleged to be incapacitated, his residence and the date residence was established; (2) the address of the place it is proposed that the person alleged to be incapacitated will reside if the appointment is made; (3) the nature of the circumstances requiring appointment; (4) the particular harm sought to be avoided and the actions which will be necessary by the temporary guardian to avoid the occurrence of the harm; (5) the name and address of the proposed temporary guardian, including the relationship to the person alleged to be incapacitated, the reason why he or she should be selected; (6) the type of guardianship requested, and if a general guardianship, the reason why limited guardianship is inappropriate, and if a limited guardianship, the powers to be granted to the limited guardian; and (7) the name and address of any agent designated under a health care proxy or durable power of attorney of which the person alleged to be incapacitated is the principal. The petitioner shall attach a copy of any such health care proxy or durable power of attorney, if available. The petition shall be accompanied by an affidavit containing facts supporting the statements and requests in the petition.

(c) Within 48 hours of being convened, the tribunal shall hold a hearing in which the petitioner shall present an offer of proof that the failure to appoint a temporary guardian for such person will likely result in real harm to the health, safety or welfare of the person alleged to be incapacitated. If the tribunal determines by clear and convincing evidence that failure to appoint a guardian will result in real harm to the health, safety or welfare of the person alleged to be incapacitated, it shall issue an order for a temporary guardian who may exercise only those powers granted in the order. The order shall terminate 60 days after issuance or, if a petition for guardianship is filed pursuant to section 5-303 before such termination, upon the determination by a court on a petition filed pursuant to said section 5-303.

(d) At the hearing, the person alleged to be incapacitated shall have the right to be represented by counsel, and, if financially unable to retain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.

(e) The petitioner shall give written notice 2 days prior to any hearing for the appointment of a temporary guardian pursuant to this section in hand to the person alleged to be incapacitated.

(f) Appointment of a temporary guardian pursuant to this section is not a final determination of a person's incapacity.