Massachusetts General Laws ch. 190B sec. 5-404 – Original petition for appointment or protective order
Section 5–404. [Original Petition for Appointment or Protective Order.]
Terms Used In Massachusetts General Laws ch. 190B sec. 5-404
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Trustee: A person or institution holding and administering property in trust.
(a) The person to be protected or any person who is interested in the estate, affairs, or welfare of the person, including a parent, guardian, custodian, or any person who would be adversely affected by lack of effective management of the person’s property and business affairs may petition for a determination of disability, in whole or in part, and the appointment of a conservator or for other appropriate protective order.
(b) The petition shall set forth the petitioner’s name, residence address, current street address if different, relationship to the person to be protected, and interest in the appointment or other protective order, and, to the extent known, state the following with respect to the person to be protected and the relief requested:
(1) the name of the person to be protected, his age, principal residence, current street address, and, if different, the address of the dwelling where it is proposed that the person to be protected will reside if the appointment is made, and the date residence was established;
(2) a brief description of the nature of the alleged incapacity;
(3) if the petition is being brought because the individual is detained or is otherwise unable to return to the United States, a statement of the relevant circumstances, including the time and nature of the detention or inability to return and a description of any search or inquiry concerning the person’s whereabouts;
(4) the name and address of the person’s:
(A) spouse; and
(B) adult children, or if none, parents and adult brothers and sisters, or, if none, heirs apparent or presumptive;
(5) the name and address of the person who has care or custody of the person 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;
(6) the name and address of any representative payee, trustee or custodian of a trust or custodianship of which the person to be protected is a beneficiary;
(7) the name and address of any person nominated as conservator by the person to be protected under a durable power of attorney, if known to the petitioner, and the name and address of any guardian or conservator currently acting for him in the commonwealth or elsewhere;
(8) the name and address of any agent designated under a durable power of attorney of which the person to be protected is the principal, if known to the petitioner, and the petitioner shall attach a copy of any such power of attorney, if available;
(9) a general statement of the person’s property with an estimate of its value, including any insurance, pension, and the source and amount of any anticipated income or receipts;
(10) the reason why appointment of a conservator or other protective order is in the best interest of the person to be protected;
(11) except for a conservatorship of a minor filed pursuant to section 5–401(b), a statement:
(A) that a medical certificate conforming to section 5–303(c), dated within 30 days of the filing of the petition; provided that such medical certificate is based upon an examination of such minor that was conducted with 30 days of the filing of the petition or, in the case of a person alleged to be developmentally disabled, 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 renders obtaining a medical certificate or clinical team report impossible, supported by affidavit or affidavits meeting the requirements set forth in Massachusetts Rule of Civil Procedure 4.1(h), in which case the court may waive or postpone the requirement of filing a medical certificate or clinical team report.
(c) If the appointment of a conservator is requested, the petition shall also set forth to the extent known:
(1) the name and address of the proposed conservator, his relationship to the person to be protected, the reason why he or she should be selected, and the basis of the claim, if any, for priority for appointment;
(2) the name and address of any person nominated as conservator by the person to be protected if 14 or more years of age;
(3) the type of conservatorship requested, and if a general conservatorship, the reason why a limited conservatorship is inappropriate, and if a limited conservatorship, the powers to be granted to the limited conservator or property to be placed under the conservator’s control; and
(d) Reasonable expenses incurred in any examination conducted pursuant to this section shall be paid by the petitioner, the estate of the person to be protected, or by the commonwealth as the court may determine.