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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 5-407 Findings; order of appointment; permissible court orders

Section 5-407. [Findings; Order of Appointment; Permissible Court Orders.]

(a) The court shall exercise the authority conferred in this Part to encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person’s limitations and other conditions warranting the procedure.

(b) Upon hearing, the court may appoint a conservator as requested if it finds that:

(1) a qualified person seeks appointment;

(2) venue is proper;

(3) the required notices have been given;

(4) any required medical certificate is dated and the examination has taken place within 30 days prior to the hearing;

[Clauses (5) to (7) of subsection (b) applicable as provided by 2012, 140, Sec. 66.]

(5) any required clinical team report is dated and the examinations have taken place within 180 days prior to the filing of the petition;

(6) the person for whom a conservator is sought is a disabled person;

(7) the appointment is necessary or desirable as a means of providing continuing care and supervision of the property and business affairs of the person to be protected; and

[Clause (8) of subsection (b) applicable as provided by 2012, 140, Sec. 66.]

(8) the person’s needs cannot be met by less restrictive means, including the use of appropriate technological assistance.

The court, on appropriate findings, may enter any appropriate order or dismiss the proceedings.

(c) After full hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court, after making appropriate findings of fact, has all those powers over the property and business affairs of the minor which are or may be necessary for the best interest of the minor and members of the minor’s immediate family. Those powers include, but are not limited to, the power to create revocable trusts of the property of the estate which may extend beyond the minority of the minor, provided that:

(1) the court determines that it is in the best interest of the minor to extend the management and protection of the minor’s money and property beyond the minor attaining the age of 18;

(2) the minor and issue of the minor are the only beneficiaries of the trust during the minor’s lifetime;

(3) upon the termination of the trust during the minor’s lifetime, the trust property will be distributed only to the minor;

(4) the ward, upon attaining the age of 18 shall have the inter vivos and testamentary power to appoint to or among such person or persons and in such proportions and upon such terms, whether outright or in trust or otherwise, all or any part of the property of the trust as the minor may determine;

(5) upon the death of the minor, to the extent that the minor fails to exercise the power to appoint, the trust will provide that the trust property be distributed to or be held in trust for the benefit of such relatives as would be likely recipients of legacies from the minor as determined by the court pursuant to subsection (e).

After full hearing and upon determining that an amendment, extension, or revocation is in the best interest of the minor, the court may amend, extend, or revoke the trust whether or not the minor has attained the age of 18. The court shall retain jurisdiction over the trust while it continues to exist.

(d) After full hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person to be protected for reasons other than minority, the court, after making appropriate findings of fact, has all those powers over the property and business affairs of the protected person which are or may be necessary for the best interest of the protected person and members of his immediate family. Those powers include, but are not limited to the power to:

(1) make gifts, except as otherwise provided in section 5-424(b);

(2) convey, release, or disclaim contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entireties;

(3) exercise or release a power of appointment;

(4) create a revocable or irrevocable trust of property of the estate, whether the trust does or does not extend beyond the duration of the conservatorship, or to revoke or amend a trust revocable by the protected person;

(5) exercise rights to elect options and change beneficiaries under insurance policies and annuities or surrender the policies and annuities for their cash value;

(6) exercise any right to an elective share in the estate of the protected person’s deceased spouse and to renounce or disclaim any interest by testate or intestate succession or by transfer inter vivos; and

(7) make, amend, or revoke the protected person’s will. The conservator, in making, amending, or revoking the protected person’s will, shall comply with section 2-502 of this chapter.

(e) The court, in exercising or in approving a conservator’s exercise of the powers listed in subsection (d), shall consider primarily the decision that the protected person would have made if not disabled, to the extent that the decision can be ascertained. In the absence of any evidence of the personal preference of the protected person, the court shall consider the following factors, and may exercise or approve a conservator’s exercise of such powers even in the absence of 1 or more such factors:

(1) the financial needs of the protected person and the needs of individuals who are dependent on the protected person for support and the interest of creditors;

(2) reduction of income, estate, inheritance, or other tax liabilities;

(3) eligibility for governmental assistance;

(4) the protected person’s previous pattern of giving or level of support;

(5) the existing estate plan;

(6) the likely recipients of the protected person’s bounty;

(7) the protected person’s life expectancy; the probability that the conservatorship will terminate before the protected person’s death; and

(8) any other factors the court considers relevant.

(f) A determination that a basis for appointment of a conservator or other protective order exists is not a determination of incapacity of the protected person.

(g) The conservator shall have custody of all wills, codicils and other estate planning documents executed by the protected person.