Massachusetts Probate Code Changes

After years of work and debate, Massachusetts is about to begin implementation of its new Uniform Probate Code (“UPC”). Part of the UPC will become effective next week on July 1, 2009 and the remaining provisions will go into effect on July 1, 2011.

The biggest change for now will be that guardianships and conservatorships will be split and require separate filings and separate plans for implementation. A new limited guardianship and ability to file petition for a single financial transaction without the need for a conservator will also go into effect on July 1. Since this is new, it is still a bit unclear how useful some of these provisions will be, but some commentators believe they could provide a valuable alternative to a full conservator process.

There is also a change in the language and certain definitions used for these proceedings. A guardianship will address the personal needs of an “incapacitated person” while a conservatorship will focus on the assets of a “protected person.” One of the other language changes was the definition of “ward.” Wards will now refer only to minors.

There are also some new rules concerning Powers of Attorney that will be effective on July 1, 2009. In the past, people may have had problems with various institutions questioning the validity of a Power of Attorney if it was older than three or five years. The UPC now requires any properly executed Power of Attorney to be honored regardless of age. It also provides statutory remedies for damages caused by a third party’s refusal to accept an otherwise valid Power of Attorney. It will take some time for businesses and other institutions to recognize these new rules.

Another element with the new rules is that in the past there has often been a waived sureties on any type of bond when initiating a guardianship or conservatorship proceeding. That is no longer the case. You will be required to have sureties unless you specifically waive them in your Power of Attorney. It is suggested that anyone holding Powers of Attorney consider updating them to allow this waiver. It could be a significant savings each year to not have posted any type of bond. Our clients will automatically receive the new updated Powers of Attorney if they are participating in our Annual Client Maintenance Program.

As always, if we can help you with any of these matters, please feel free to contact us.

Scott E. Squillace, Esq.
Boston Estate Planning Attorney