Guardianship Proceedings in Massachusetts Probate Courts for Health Care Facilities: The Not-so-Uniform Probate Code

By William A. Mandell and Suzanne M. Fuchs

Introduction

On January 15, 2009, Massachu­setts joined 18 other states in adopting the Uniform Probate Code (“UPC”).1 Article V of the UPC went into effect on July 1, 2009, making sweeping substantive and proce­dural changes to guardianship law, aiming to grant greater protections to the civil rights of incapacitated persons.2 Further changes to the UPC were adopted in April of 2012, mostly relative to intestate succes­sion and estate administration.

In theory, Article V of the UPC was de­signed to streamline procedural re­quirements for appointing surrogate decision makers while protecting the civil rights of the incapacitated by crafting decrees and orders spe­cifically tailored to address particu­lar areas of incompetency. In prac­tice, however, so far the UPC has led to a significant increase in petitions, motions and return appearances being filed by health care facilities for incompetent patients at a time of diminished Probate Court system re­sources. Under the UPC, health care facilities are more frequently secur­ing the appointment of guardians and seeking specific and modified court orders for admission to skilled nursing facilities, treatment plans for patients unable to give informed consent, non-routine medical deci­sions and end-of-life decisions. They are doing so for a broader scope of medical conditions and transfer situations, and finding that Probate Court judges, in applying the UPC, are often limiting the authority of guardians to give consent for treat­ments unless further court review and approval are secured.

The UPC instructs Probate Court judges not to confer more authority over a person than is necessary.3 The balance between an incapaci­tated patient’s civil rights and the altruistic discretion of hospitals and other treating facilities has been fundamentally altered by the UPC as Probate Court judges are now clearly required to make orders only to the extent necessitated by the protected person’s limitations and other con­ditions.4

Furthermore, the variability of the Massachusetts Probate Courts in applying the UPC often adds delay and unnecessary cost for health care institutions and consequently their ability to efficiently and effec­tively treat the very individuals that the UPC was intended to protect. For example, the cost-effective health care system is designed to move pa­tients out of an acute care setting as quickly as possible when sub-acute level care is more appropriate and a bed placement has opened up for the patient. In order to authorize the transfer of an incompetent patient, who has no involved family mem­bers and never appointed a health care agent before becoming incom­petent, Massachusetts acute care hospitals are often forced to keep such a patient in the acute care set­ting pending the appointment of a guardian or the modification of the existing guardianship to authorize transfer to a skilled nursing facility, which is specifically required under the new law.5 This new aspect of the law results in extended stays in acute settings for extra weeks or months, exposing patients to great­er risk of infection and relapse, often without access to needed rehabilita­tion and long term care services. This occurs while the hospital coun­sel or family attorney navigates the various courts’ processes, subject to the courts’ overburdened schedules and lack of personnel.

Additionally, health care institutions pursuing guardianships will often en­counter the challenge of being in the middle of a dispute with or among the incapacitated individual’s family members about whether a guardian is needed, who will serve as guard­ian, and decisions as to treatment or treatment discontinuation. More often than not, a facility facing ad­versarial family members especially needs to petition for guardianship to secure a court order approving the recommended treatment plan. The facility is forced to bear the financial burden of pursuing a guardianship that is significantly delayed by the objecting family members.

Venue limitations under the UPC and inconsistent guardianship proceed­ings among Massachusetts Pro­bate Courts also challenge health care facility petitioners who must obtain guardians and court orders for treatment and transfers for the growing number of incapacitated patients lacking duly appointed sur­rogate decision makers and/or any involved family members. Clearly, the demographic trends of people in the U.S. living longer are impacting the number of patients in Massa­chusetts who need a legal surrogate to make health care decisions. The current backlog of cases pending in the underfunded and overburdened Probate Courts across the Common­wealth further delays guardianship proceedings and can lead to great variation of process among the Pro­bate Courts.

General Overview Of Guardianship Law and Procedure Under The UPC

A. Understanding Guardianship Sub­stantive Requirements:

Under the UPC, a guardian may be granted an array of general powers that effectuate the guardian’s ability to act as a medical decision maker on behalf of an incapacitated per­son. The guardian’s powers fall into three general categories, and each category necessitates distinct proce­dural and substantive requirements under the Code. Generally, the first category is known to practitioners as “ordinary medical decision making,” the second is “placement authority,” and the third is commonly referred to as “extraordinary medical deci­sion making” or “substituted judg­ment” proceedings, which neces­sitate the appointment of a public defender paid by the Committee for Public Counsel Services who is spe­cifically trained to advocate for the patient in these types of cases.

With regard to the first category, a guardian appointed without any additional authority is generally au­thorized to make decisions about routine, non-invasive medical proce­dures. Once appointed by the court, such a guardian may have the au­thority to “make decisions regarding the incapacitated person’s support, care, education, health and welfare . . . and the guardian shall act in the incapacitated person’s best inter­est and exercise reasonable care, diligence, and prudence.”6 Such “or­dinary decision making” authority generally gives consent to treatment and arranging appropriate medical inpatient or outpatient care that does not involve any antipsychotic medications. A guardian need not seek explicit orders for each “ordi­nary care” decision, so long as the guardian is appointed by the court and is acting in the incapacitated in­dividual’s best interest. Also, guard­ians are the duly appointed legal surrogates who have authority over the use and disclosure of the health information7 for the “person in need of services.”8

The second category, placement au­thority, requires an explicit court or­der allowing the guardian to consent to placement in a skilled nursing facility or other health care facility.9 The court, rather than the guardian, after a hearing on the matter, will apply the “best interest” standard in determining whether such author­ity, and thereby placement, is ap­propriate. This authority is required for admission of any person under guardianship to any facility licensed as a skilled nursing facility, whether for long term care or any short term rehabilitation, even if only for several days. The requirement also applies regardless of who the guardian is, including those who are spouses, children or other family members as opposed to professional or institu­tional guardians. Issues also arise regarding persons from out of state and whether the foreign decrees au­thorize admissions to skilled nursing facilities in the Commonwealth.

Finally, a guardian can only make “extraordinary medical decisions” upon an explicit court order au­thorizing the specific treatment in question. Extraordinary medical procedures generally fall into two categories: (1) administration of antipsychotic medication, known as “Rogers authority;”10 and, (2) all other invasive treatments. For both types of extraordinary medical pro­cedures, probate courts apply the “substituted judgment” standard, whereby the Court weighs various factors in order to determine the decision that the incapacitated in­dividual would have made if com­petent.11 The drafters of the UPC did not specify an exhaustive list of such extraordinary authorities, ac­counting for and leaving flexibility to adapt to evolving medical tech­niques and standards.12 The UPC has, however, codified the following common examples of extraordinary treatment: “[t]reatment with anti­psychotic medication, sterilization, abortion, electroconvulsive therapy, psychosurgery and removal of ar­tificial maintenance of nutrition or hydration.”13 The UPC is not clear as to whether a guardian may consent to a “Do Not Resuscitate”, “Do Not Intubate” or “Do Not Hospitalize” order without specific court author­ity. Prior to the adoption of the UPC, Massachusetts courts suggested that a substituted judgment finding is required for the guardian to enter a DNR/DNI order.14 An exception to this requirement may exist when the patient is in acute medical distress, the guardian/family/physician all agree that there is no choice to be made, and avoiding resuscitation or lifesaving measures will not hasten death.15

B. Understanding Guardianship Procedural Requirements

Any person “interested in the wel­fare of the incapacitated” may peti­tion for a determination of incapacity and/or the appointment of a guard­ian over the incapacitated person (hereinafter “Respondent”).16 The

UPC contains venue rules that re­quire the petitioner to file in the Pro­bate Court of the county where the Respondent resides at the time the proceeding is commenced.17 Pre- UPC guardianship procedure was more lenient in permitting Massa­chusetts health care facilities to file petitions of permanent appointment and motions for temporary appoint­ment in the Probate Court located in the County where the facility was located.

Upon receiving a petition for guard­ianship, the Probate Court issues a citation, which is to be served in hand upon the Respondent as well as the heirs at law at least two weeks prior to the return date listed on the citation.18 Where there are no heirs at law or the interested parties do not receive notice, a publication must occur in the County where the proceeding is pending at least seven days prior to the return date. G.L. c. 190B §1-401(3). The “return date” is, in effect, a deadline by which in­terested persons to the case may file an objection. This date is usually about 4-6 weeks from the date of filing of the petition with the Court. A permanent guardianship cannot be completed until this date passes and proof of service upon all inter­ested parties and/or publication is filed with the Court.

While the permanent petition is pending, a petitioner may file a veri­fied motion for the appointment of a temporary guardian if “an incapaci­tated person has no guardian, and the court finds that waiting during the longer time frame to secure a permanent appointment under UPC procedures will likely result in imme­diate and substantial harm to the health, safety or welfare of the per­son alleged to be incapacitated oc­curring prior to the return date, and no other person appears to have au­thority to act in the circumstanc­es.”19 A temporary guardian ap­pointment is effective for 90 days, at which time it will be reviewed and new medical documentation will be required.20 On a temporary motion, the Petitioner must give seven days in-hand notice to the Respondent and the same by mail to any heirs at law.21 If the Court finds that an immediate emergency exists requir­ing the appointment of a guardian, it may waive or shorten the notice requirements, provided that the Re­spondent is notified of the proceed­ing as directed by the Court, and the Respondent and heirs at law receive notice after the proceeding instruct­ing them that they may vacate the order. 22, 23

If a petitioner requests ordinary au­thority or skilled nursing home au­thority, the court must determine whether such placement is in the best interest of the Respondent.24 The Court may appoint counsel to represent the interests of the inca­pacitated person, or a guardian ad li­tem (GAL) to investigate and provide a report to the Court.25 If a petitioner seeks extraordinary authority or au­thority to consent to administration of antipsychotic medication (“Rog­ers authority”), the courts will always appoint counsel for the Respondent.

Variability of Guardianship Pro­ceedings Among Massachusetts Probate Courts

After a new guardianship petition and motion for temporary guardian is filed it can take two weeks to sev­eral months to have the first hearing date depending on which Probate Court the guardianship petition is filed. This length of time, particu­larly for petitions filed by acute care hospitals, is extremely problematic, costly, and can pose imminent harm to Respondents. The lack of suffi­cient funding for the Massachusetts Probate Courts has caused cuts to staff and most recently, a limitation on the hours that the Courts are open to consider petitions and mo­tions.26 This contraction of service is happening at the same time that the UPC is requiring the Probate Courts to adapt to entirely new rules and process on estate administration while still handling the normal work load. The increasing amount of inca­pacitated patients is also resulting in significantly more demands on the Probate Courts with more guard­ianship case filings.

A. Venue Requirements

The UPC provides that a guardian­ship petition shall be filed where the Respondent resided prior to hospitalization.27 This venue require­ment seems warranted if the patient has family or friends residing in the same County who are involved with the patient’s care and can provide information about the patient’s preferences prior to his incapacity. However, a growing number of pa­tients are homeless or have resided alone without any known heirs or acquaintances prior to hospitaliza­tion. Requiring health care facility petitioners to file in a Court that may be a long distance from the facility, causes undue delay, burdens the facility, the guardian, the court ap­pointed counsel, and testifying phy­sicians. Further, an incapacitated individual has the right to attend any hearing, and in Rogers cases, must attend a hearing absent extraordi­nary circumstances.28 As written, the UPC does not acknowledge ex­ceptions to the venue rule where the patient has no ties to his previous residence.

For example, a Boston tertiary care hospital that must seek a guardian­ship appointment to secure an order to approve a discharge plan to a sub-acute facility for a patient found homeless in Barnstable County is expected to file the matter in Barn­ stable County Probate Court. Previ­ously, such a case could have been filed in Suffolk County Probate Court, nearer to the patient, the physicians, and attorneys who may be involved with the case. To require a patient, who likely already has limitations and requires hospital transport, to travel long distances makes no sense and adds unnecessary cost to the health care system.

There is great variation among the Probate Courts on the strict adher­ence to this venue rule. As applied, courts vary as to permitting filing in the venue where the health care facility is located. More troubling, it seems that a Probate Court’s fi­nancial constraints and perceptions about other Counties’ practices drive judicial decisions to reject fil­ings. Anecdotally, it has been re­ported among regular guardian­ship petitioner counsels that some judges have stated that because another County will not accept cases involving their residents, they will not waive the venue rule for a petitioning local health care facility and accept a case involving an incapacitated person whose last known residence is from the other County.

There clearly needs to be greater discretion granted to Judges to have legal authority to waive venue re­quirements and allow filings in the County where the petitioning facility is located if circumstances warrant, for patient and family convenience and/or to realize economy in the use of resources of an already over-burdened health care system.

B. Docketing the Petition

Once a petitioner overcomes the venue obstacle, the petitioner must file the paperwork, have it docketed, and obtain a hearing date for the temporary guardianship motion. Like most guardianship procedural hurdles, the method for docketing a file and obtaining a hearing sig­nificantly varies with each Probate Court and presents further delays and expense. One common trend is that few of the Probate Courts will now process a file and assign it a docket number and hearing date on the day of filing. In the best case scenario, new matters are dock­eted within a few days and hearing dates are generally being scheduled ten days from filing. Guardianship cases, even those including motions for temporary appointments, will languish in some Probate Courts. If not pushed as life-or death emer­gencies, these cases will be placed in a pile of back-logged cases and not processed for several weeks, nor heard for several months.

In other cases, the court will not as­sign a case a court date. Instead, the petitioner must determine which Judge will hear the matter and when that Judge is available, and then at­tempt to contact the Probate Court to obtain a court date. A date ob­tained in this manner is often times weeks out, at best.

C. Appointment of Counsel

Even if a petitioner is successful in docketing within a few days of filing, most of the Probate Courts will not mark-up a hearing date until ap­proximately seven to ten days from filing, which is consistent with prop­er notice under Mass. G.L. c. 190B §1-401(3). Although judges hold weekly motion days, clerks in many of the busiest Probate Courts are unable or unwilling to schedule new cases less than a few weeks after the docketing of the case, if at all.

When an expeditious hearing date can be obtained, inconsistencies among the Probate Courts in coun­sel appointment can further delay the process and lead to vast differ­ences in the time it takes to secure the requisite legal authority to imple­ment a discharge and/or treatment plan. Patients needing rehabilitation or long term care services and treat­ment can remain unnecessarily in acute care settings.

As previously mentioned, all Probate Court judges will appoint Rogers counsel or counsel for the Respon­dent when consent to treat with anti­psychotics or extraordinary authority is sought. Counsel must be notified of their appointment, accept the court appointment and have the op­portunity to visit with the Respondent prior to the hearing on a proposed treatment plan. There is a limited list of Committee for Public Coun­sel Services (“CPCS”) attorneys who can accept Rogers appointments. Again, due to the courts’ backlog, counsels are often not appointed until days or even weeks after the filing of the petition. Often the ap­pointed counsel for the patient does not receive notice of appointment in time for a hearing, cannot visit the patient in time, or cannot accept the appointment at all. In such instanc­es, the initial hearing date on a mo­tion for a temporary guardian and immediate approval of a treatment plan is continued.

Additionally complicating matters are the inconsistencies among judges in appointing counsels and GALs in non-Rogers cases. Where a guardian is needed to authorize the transfer out of an acute care hospi­tal to a home care or non-acute facil­ity setting, currently there are huge and unpredictable variances in the process among the Probate Courts and even the judges within each County. Because the UPC calls for ju­dicial discretion for counsel appoint­ment, some judges routinely choose to appoint counsel, or even a GAL, while others do not. Without know­ing judicial preference beforehand, clerks may fail to appoint counsel, and the petitioners may prepare for a hearing date only to receive an or­der requiring a counsel appointment on the day of the hearing.

D. Shortage of Guardians

In guardianship cases involving pa­tients who have no living or involved family members and never appoint­ed a health care agent while com­petent, petitioning health care facili­ties need to identify and secure the services of some suitable person to serve as guardian. Overburdened Probate Court clerks and judges are unlikely to find a willing attorney or social worker to serve as a guardian in patient care cases filed by hospi­tals and nursing homes. The involve­ment of the Courts in helping secure guardians varies greatly from County to County. By separating the guard­ianship function over health care decisions from the conservator func­tions over financial affairs into two separate legal proceedings, the UPC makes it difficult to find willing volun­teers to serve as guardians in cases involving incompetent patients with no involved family or friends who are willing to serve as guardian. For hospitals and other facilities that regularly seek guardianship appoint­ments it has become a constant challenge to secure the services of guardians for incompetent patients. The shrinking pool of guardians is in part attributable to the increasingly complex annual reporting required under the UPC, coupled with the convoluted manner in which profes­sional guardians are compensated for indigent patients. Under the cur­rent scheme, a professional guard­ian can only seek payment for serv­ing a MassHealth patient by seeking approval from the Court to order MassHealth to adjust the amount of the patient’s contribution for her care from external income sources (social security or pension).29 This adjustment must be authorized by the Court on an annual basis, and it is a mechanism that precious few attorneys will tolerate to serve as guardians. This is a situation that will get worse and warrants a sys­tematic fix.

E. Process to Affirm Health Care Agents

As currently written, the UPC pro­vides that a properly designated health care agent’s authority under M.G.L. c. 201D takes priority over the authority of a guardian, and can­not be revoked absent court order.30 Further, the comments to M. G.L. c. 190B §5308, state that the lan­guage of the revised UPC “should aid in preventing the mere institu­tion of a guardianship proceeding from upsetting an arrangement for care under a health care proxy.” Ac­cordingly, it is clear that the drafters of the UPC intended to prioritize des­ignated health care agents and re­spect an individual’s right to prepare an advance directive.

Under M. G.L. c. 201D §5, a health care agent has broader decision making authority than a court ap­pointed guardian. “The agent has authority to make any and all health care decisions on the principal’s be­half that the principal could make, in­cluding decisions about life-sustain­ing treatment, subject, however, to any express limitations in the health care proxy.”31 An agent’s powers are not limited to non-antipsychotic treatment plans or consenting to non-extraordinary authority, as are the guardians. Further, an agent may admit an incapacitated individ­ual to a locked psychiatric facility,32 whereas the under G.L. c. 190B §5- 309, a guardian explicitly lacks such authority.

Despite the UPC’s clear intent to up­hold the broad authority of health care agents without the need for court intervention, M. G.L. c. 201D §7 makes it easier for the patient who executed a proxy when com­petent to render it unreliable for the health care provider by refusing treatment or to undergo a procedure authorized by the agent. M. G.L. c. 201D §7 states that “[a] principal may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific in­tent to revoke the proxy.”33 In such circumstances, this section of the Massachusetts Health Care Proxy Law requires a physician who is in­formed of or provided with a revoca­tion of a health care proxy to imme­diately record the revocation in the principal’s medical record and to notify orally, and in writing, the agent and any health care providers known by the physician to be involved in the principal’s care of the revocation.

Thus, hospitals encountering pa­tients who refuse treatment over the authority of their agents often have no choice but to file a guardianship petition or seek a court order af­firming the authority of the agent in order to secure the requisite legal authority over treatment decisions. The UPC does not provide for any process to resolve such cases. The Health Care Proxy Law does provide a process through which a petition­er, including a hospital or health care facility, may “commence a spe­cial proceeding in a court of com­petent jurisdiction, with respect to any dispute arising under [M. G.L. c. 201D].”34 This language suggests that a petitioner may seek to affirm the powers of the agent, but neither M. G.L. c. 201D nor the UPC provide any further guidance on when affir­mation of a proxy is appropriate or any procedural guidelines regarding affirming an agent’s continuing au­thority under a proxy despite a pa­tient’s refusal to voluntarily submit to treatment.

Some hospitals have been suc­cessful in petitioning Probate Court judges to affirm an agent’s authority on the basis of the Probate Court’s general authority. Other hospitals have adopted the practice of seek­ing a guardianship appointment of the agent in such cases. Currently, there is a lack of uniformity on how to most expeditiously secure the mini­mum necessary judicial interven­tional while protecting the patient’s rights. Arguably the patient’s rights would be best served by honoring the prior broad agency appointment. But if there is evidence of unfitness of the agent or a question of suffi­cient competency by the patient to have the informed capacity to refuse the treatment, then some level of an evidentiary hearing may be required in many of these cases to sufficiently adjudicate the matter.

F. Short Order on Notice

One mechanism that can be at­tempted by health care facility peti­tioners, and should be more widely accepted by all Massachusetts Pro­bate Court clerks and judges, is to file motions for short orders of notice due to an exigent medical situation and the necessity of expediting the proceedings. A short order of notice allows the moving party to be heard on its motion within a period of time shorter than the required 7 days no­tice. Further, it allows a motion to be heard on a day that may otherwise be blacked out by those who sched­ule motions for the Judge due to the number of already marked up mat­ters. There is a great variance cur­rently among the Probate Courts as to their willingness to permit short orders of notice. In all venues, Court staff and case managers alike are understandably resistant toward any cases filed on emergency status, as it burdens an already strained sys­tem. Emergency motions are now almost always met with scrutiny and some push back.

Moreover, each County differs on its procedure to expedite appointment of counsel for matters that may be marked up more quickly. Some judges permit petitioner’s coun­sel to propose CPCS counsel who is available on short notice. Other Judges forbid proposing counsel in a motion and instruct that counsel is appointed “off the list” where too of­ten counsel is not appointed in time for the scheduled hearing. In some Counties, depending on the nature of the circumstances, temporary guardianship appointment may be made without appointment of coun­sel, and subsequent appointment is made with a short review date in order to reassess the emergency order. A broader adoption of this ap­proach among more Counties would be helpful.

G. Out-of-State Patients/Juris­dictional Questions

Another major challenge many Massachusetts health care facili­ties face now under the UPC is with out-of-state incompetent patients. Facilities located near the border of neighboring states, as well as Mas­sachusetts teaching hospitals and centers of excellence, regularly treat out-of-state patients and inevitably many of them are not competent to make informed health care deci­sions. Many Massachusetts hospi­tals and sub-acute facilities have service areas that include large portions of Rhode Island, Connecti­cut, New York, New Hampshire and Maine.

Many out-of-state incompetent pa­tients present without having made out an advance directive recognized by their state of residence. This leaves a major question of jurisdic­tion and applicable law. Clearly, a Massachusetts hospital cannot treat and discharge such a patient on a non-emergency basis without seeking the appointment of a guard­ian and would need to do so by filing a petition in a Massachusetts Pro­bate Court. Many Probate Courts, however, will not accept such peti­tions and instruct Massachusetts health facility counsels to seek an appointment in the state court of the patient’s residence.

In other situations, a patient does have a surrogate in place from an­other state but additional questions come up as to that out-of-state sur­rogate’s authority to consent to anti-psychotic treatment and other inva­sive treatments being rendered in Massachusetts.

The American Bar Association has proposed adoption by the states of the Uniform Adult Guardianship and Protective Proceedings Jurisdic­tion Act (“UAGPPJA”). This Act would address jurisdictional issues such as transfer, out of state jurisdiction, and multi-jurisdictionalguardianships.35 Massachusetts could resolve many of these jurisdictional issues by join­ing the 30 other states that adopted the Act.

H. Consequences of the Vari­ability in Procedure Among Pro­bate Courts

The increasing length of time under current UPC Probate Court practice before a temporary or permanent guardianship is heard is problematic and does not serve the interests of the incapacitated individuals that the UPC was drafted to protect. It is important to understand that most cases initiated by health care facili­ties are, by their very nature, urgent situations. For patients who do not have a surrogate decision-maker but are medically stable and ready for discharge, the current Probate Court system is causing acute care hospi­tals longer than is medically advis­able to discharge. These patients are often at greater risk of acquiring healthcare-associated infections, also referred to as nosocomial, hos­pital-acquired or hospital-onset in­fections. These patients also remain unable to obtain appropriate reha­bilitation or post-acute care, facing the likelihood that his or her condi­tion will deteriorate. Further, proper placements cannot be held indefi­nitely and are often lost by the time a temporary guardian appointment with the discharge approved by the Court can be secured. Patients who must wait one month for a guardian­ship order often will not be accepted by the originally available post-acute care facility or program as the bed or placement has been filled. More­over, the patient in a locked- psychi­atric facility awaiting a guardianship appointment and an order approv­ing a treatment plan must remain in the most restrictive setting, suffering the symptoms of a psychiatric illness without the ability to commence an antipsychotic treatment plan.

Conclusion

The variability of Massachusetts Probate Courts in applying UPC requirements is currently causing unnecessary financial costs to the Massachusetts health care system, inconvenience and uncertainty to litigants and their counsel, and most importantly, is not serving the inter­ests of the incapacitated. Some of the current challenges stem from the financial shortfalls and lack of resources in the system. Many, how­ever, could be easily rectified by UPC amendments and/or more consis­tent application of procedural steps by all of the Massachusetts Probate Courts in handling guardianship pe­titions and motions filed by health care facilities. A re-examination of the UPC as applied by the Probate Courts and the handling of all health care intervention matters is due and should be undertaken by the Chief Administrative Justice of the Mas­sachusetts Probate Courts. Such a process could hopefully result in more efficient, fair standardized procedural rules to ensure that the UPC’s intent to create uniformity of procedure and greater rights for the incapacitated is effectively carried out in practice.

William A. Mandell is a partner in the Boston law firm of Pierce & Mandell, P.C. He has over 25 years of experience representing health care providers, medical societies, biotech companies, and research and educational companies, on all aspects of health and business law. He is also the author of several works on legal compliance, including, Managing Relationships with In­dustry A Physician’s Compliance Manual; the Massachusetts Health and Hospital Law Manual and Making Sense of the Stark Law: Compliance for the Medical Practice. He is a member of the American Health Lawyers Associ­ation, the American Bar Associa­tion and the Boston Bar Associa­tion Health Law Section Steering Committee.

Suzanne M. Fuchs is an associate with Pierce & Mandell, P.C. focusing her practice on a variety of matters, with a concentration in the areas of civil litigation, personal injury, insurance defense, and health care related legal proceedings, including civil commitments and guardian­ships. Suzanne is a graduate of Cornell University (B.A. 2006) and Northeastern University School of Law. Prior to joining Pierce & Mandell, Suzanne interned as a law clerk for the Honorable Judge Frank Gaziano of the Massachusetts Su­perior Court. Suzanne also worked for a state agency that provided direct legal representation to indi­viduals with mental disabilities in a variety of legal matters. She was also employed as outside counsel for a large insurance company. Su­zanne is admitted to practice in the states of Massachusetts and Rhode Island, as well as in the Federal District Court for the District of Mas­sachusetts.

(Endnotes)

1 Mass. G.L. c. 190B §§1-101 -1-507.

2 The UPC defines an “incapacitated person” as “an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self care, even with appropriate technological assistance.” Mass. G.L. c. 190B 521 § 5-101(9).

3 Mass. G.L. c. 190B, § 5-306. Under the UPC guardians no longer have any authority over the funds or estate of a person, but rather no have authority only over the person’s personal/health care decisions. Court appointed surrogate authority over the financial affairs of an incapacitated person is limited to a conservator, who must be appointed through a separate legal process from a guardianship under the UPC.

4 Mass. G.L. c. 190B, § 5-407 (a), (d).

5 Mass. G.L. c. 190B § 5-309 (g). “No guardian shall have the authority admit an incapacitated person to a nursing facility except upon a specific finding by the court that such admission is in the incapacitated person’s best interest.” According to the note for § 5-309(g), the requirement of specific authority for admission to a nursing facility is an important new protection for the elderly.

6 Mass. G.L. c. 190B §5-309 (A).

7 45 C.F.R. §164.502 (g)(1) and (2); Mass. G.L. C 111, §70; Mass. G.L. C 112, §12C

8 The UPC replaces the reference of “ward” to “person in need of services” for adult incapacitated individuals.

9 Mass. G.L. c. 190B § 5309 (g).

10 The Court in Rogers et al v. Commissioner of the Department of Mental Health et al., 390 Mass. 489 (1983) held that specific court authority must be sought to administer antipsychotic medication, whereby the court applies a “substituted judgment” standard in order to determine whether an incapacitated individual would have refused treatment if he were not incapacitated.

11Brophy v. New England Sinai Hospital, 398 Mass. 417, 427 (1986) (At least six factors are weighed in making substituted judgment: the individual’s express preferences regarding treatment; the strength of the individual’s convictions in relation to their refusal of treatment; the impact of the decision on the individual’s family; the probability of adverse side effects; the prognosis with and without treatment; and any other relevant factors); Mass. G.L. c. 190B § 5306A.

12 The Massachusetts Comment to Mass. G.L. c. 190B §5-306A states that: “The types of treatment for which a substituted judgment procedure may be required are not listed as they may vary depending on the invasiveness of the particular proposed procedure or because of advancements which reduce side effects, etc., see In Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980).”

13 Massachusetts Comment to Mass. G.L. c. 190B §5-303.

14 See In re Saikewicz, 373 Mass. 728 (1977).

15See In re Dinnerstein, 6 Mass.App.Ct. 466; 380 N.E.2d 134 (1978).

16 Mass. G.L. c. 190B §5-303 (A).

17 Mass. G.L. c. 190B §5-105.

18 Mass. G.L. c. 190B §5-303, citing to G.L. c. 190B §1-401.

19 Mass. G.L. c. 190B § 5308 (A).

20 Id.

21 Mass. G.L. c. 190B § 5308 (c).

22 Mass. G.L. c. 190 § 5308 (d).

23 Often urgent and potentially life-threatening circumstances call for even more immediate court intervention which can be availed through the Emergency Judicial Response System.

24 Mass. G.L. c. 190B 521 § 5309 (g).

25 Mass. G.L. c. 190B 521 § 5106; Mass. G. L. c. 190B 521 § 5309 (d).

26 The current hours for Massachusetts Probate Courts are 8:30am – 3:30pm.

27 Mass. G.L. c. 190B §5-105.

28 Mass. G.L. c. 190B 521 §§ 5-106, 5- 306A (d).

29 See 130 C.M.R. 520.026 (E)(3).

30 Mass. G.L. c. 190B §5-309 (e).

31 Mass. G.L. c. 201D §5

32 Cohen v. Bolduc, 435 Mass. 608, 609 (2002).

33 Mass. G.L. c. 201D §7 (emphasis added).

34 Mass. G.L. c. 201D § 17.

35 The National Guardianship Association describes UAGPPJA on their website, http://www.guardianship.org/uagppja.htm

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