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  • PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
  • TITLE II DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES, GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
  • CHAPTER 190B MASSACHUSETTS UNIFORM PROBATE CODE
  • ARTICLE V PROTECTION OF PERSONS UNDER DISABILITY
    AND THEIR PROPERTY
  • Section 5-303 Procedure for court appointment of a guardian of an incapacitated person

Section 5-303. [Procedure for Court Appointment of a Guardian of an Incapacitated Person.]

(a) An incapacitated person or any person interested in the welfare of the person alleged to be incapacitated may petition for a determination of incapacity, in whole or in part, and the appointment of a guardian, limited or general.

(b) The petition shall set forth the petitioner’s name, residence and address, relationship to the person alleged to be incapacitated, and interest in the appointment, and, to the extent known, set forth the following with respect to the person alleged to be incapacitated and the relief requested:

(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) a brief description of the nature of the alleged incapacity, and whether:

(A) the person is alleged to have an intellectual disability;

(B) the petitioner seeks court authorization to consent to treatment for which a substituted judgment determination may be required; or

(C) the petitioner seeks court authorization to admit the person alleged to be incapacitated to a nursing facility.

(4) the name and address of the proposed guardian, his relationship to the person alleged to be incapacitated, the reason why he or she should be selected, and the basis of the claim, if any, for priority for appointment;

(5) the name and address of the person’s:

(A) spouse; and

(B) children, or if none, parents and brothers and sisters, or, if none, heirs apparent or presumptive and the ages of any who are minors, so far as known or ascertainable with reasonable diligence by the petitioner;

(6) the name and address of the person who has care or custody of the person alleged to be incapacitated or with whom the person has resided during the 60 days (exclusive of any period of hospitalization or institutionalization) preceding the filing of the petition;

(7) the name and address of any representative payee;

(8) the name and address of any person nominated as guardian by the person alleged to be incapacitated, and the name and address of any guardian or conservator currently acting for him in the commonwealth or elsewhere;

[Paragraph (9) of subsection (b) applicable as provided by 2012, 140, Sec. 66.]

(9) the name and address of any agent designated under a durable power of attorney or health care proxy of which the person alleged to be incapacitated is the principal, if known to the petitioner, and the petitioner shall file with the petition a copy of any such power of attorney or health care proxy, if available;

(10) the reason why a guardianship is necessary, 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;

(11) a statement:

(A) that a medical certificate dated within 30 days of the filing of the petition or, in the case of a person alleged to have an intellectual disability, a clinical team report dated within 180 days of the filing of the petition, is in the possession of the court or accompanies the petition; or

(B) of the nature of any circumstance which makes it impossible to obtain a medical certificate or clinical team report which shall be supported by affidavit or affidavits meeting the requirement set forth in Massachusetts Rule of Civil Procedure 4.1(h), in which case the court may waive or postpone the requirement of filing of a medical certificate or clinical team report; and

(12) a general statement of the property of the person alleged to be incapacitated with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts.

[Introductory paragraph of subsection (c) applicable as provided by 2012, 140, Sec. 66.]

(c) Unless otherwise directed by the court, a medical certificate filed under this article shall be signed by a registered physician, certified psychiatric nurse clinical specialist, nurse practitioner or licensed psychologist and shall contain:

(1) a description of the nature, type, and extent of the person’s specific cognitive and functional limitations;

(2) an evaluation of the person’s mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills;

(3) a prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and

(4) the date of any examination upon which the report is based.

(d) A person alleged to have an intellectual disability shall be examined by a clinical team consisting of a physician, a licensed psychologist and a social worker, each of whom is experienced in the evaluation persons with an intellectual disability, who shall report their conclusions to the Court.

[Subsection (e) applicable as provided by 2012, 140, Sec. 66.]

(e) The court may require additional medical or psychological testimony as to the mental and physical condition of the person alleged to be incapacitated or disabled and may require that such person submit to examination. The court may also appoint 1 or more persons, expert in incapacity or disability, to examine such person and report the conclusions thereof to the court.

[Subsection (f) applicable as provided by 2012, 140, Sec. 66.]

(f) Reasonable expenses incurred in any examination conducted pursuant to this section shall be paid by the petitioner, the estate of the person alleged to be incapacitated or by the commonwealth as the court may determine.