This memorandum is in response to your request for advice regarding the impact of
Massachusetts’s recent adoption of the Uniform Probate Code (“UPC” or “MUPC”), see Mass. Gen. Laws ch. 190B, §§ 1-201 through 5-507, upon the entry for Massachusetts
in GN 00502.300, Digest of State Guardianship Laws (“Digest”). As you know, the MUPC superseded the
prior guardianship law of Massachusetts, see Mass. Gen. Laws ch. 201, §§ 1 through 51, effective July 1, 2009. We think that,
under the MUPC, the appointment of a guardian remains equivalent to a finding of legal
incompetency. An order appointing a limited guardian, temporary guardian, guardian
ad litem, or any type of conservator, however, must be scrutinized more closely by
SSA to determine whether the order amounts to a finding of legal incompetency.
The MUPC alters the prior guardianship laws of Massachusetts in several different
ways. See generally Raymond H. Young et al., At Last! The Massachusetts Uniform Probate Code, 53-APR BBJ 10, 12 (Boston Bar Journal
March/April 2009) (setting forth various changes in prevailing law following enactment
of MUPC). While certain changes are outside the scope of your query given the very
general nature of the information contained in the Digest, some amendment is necessary.
In certain situations, SSA considers a judicial determination of “legal incompetency”
independently sufficient to trigger the appointment of a representative payee. See GN
00502.005; GN 00502.010; GN 00502.020(B); see also 20 C.F.R. §§ 404.2010, 404.2015(a). Under the POMS, “legal incompetency” is defined
as “a decision by a court of law that a claimant is unable to manage his [or] her
affairs.” GN 00501.010(7). Many states, however, have discontinued use of the phrase “legally incompetent”
as a term pertinent to judicial findings regarding capacity. See generally GN 00502.005(A), (B). In those states, SSA must explore the substance of capacity-related court
orders to ascertain whether the order comprises a finding of legal incompetency. See GN0502.005(B).
The MUPC favors the terms “incapacitated person” and “protected person,” see Mass.
Gen. Laws 190B, § 1-201(22), (41), over the more generic descriptor “incompetent person,”
which courts frequently used in analyzing the former Massachusetts guardianship law,
see, e.g., Matley v. Minkoff, 859 N.E. 2d 887, 889-90 (Mass. App. Ct. 2007).
The MUPC defines an “incapacitated person” as “an individual for whom a guardian has
been appointed under [Mass. Gen. Laws ch. 190B, §§5-301 through 5-313].” Mass. Gen.
Laws ch. 190B, § 1-201(22). More specifically, an “incapacitated person” is “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.” Id. § 5-101(9).
A guardian is defined as “a person who has qualified as a guardian of a minor or incapacitated
person pursuant to court appointment and includes a limited guardian, special guardian
and temporary guardian, but excludes one who is merely a guardian ad litem.” Id. § 5-101(6). In situations not involving minors, the MUPC favors limited guardianships,
empowering the incapacitated person to manage his or her own affairs to the extent
practicable. See id. §§ 5-306(a), (c), 5-309(a). In the absence of express limitations, however, a guardian
is imbued with the authority to make all “decisions regarding the incapacitated person’s
support, care, education, health and welfare.” See id. §§ 5-309(a). Temporary guardians, with specifically delineated powers, may also be
appointed when an incapacitated person is without a guardian and the court perceives
the likelihood of “immediate and substantial harm” in the absence of an appointment.
See id. § 5-308.
We think that the appointment of a guardian, without qualification, remains equivalent
to a finding of legal incompetency. To order the appointment of a guardian with full
authority, a court must find that an individual (if not a minor) “lacks the ability
to meet essential requirements for physical health, safety, or self-care” and is unable
to make decisions regarding his or her “support, care, education, health and welfare.”
Id. §§ 5-101(9); 5-306; 5-309(a). It is difficult to fathom an individual incapable of
such rudimentary activities who could nevertheless manage his or her benefits or direct
another to do so. Thus, the court-ordered appointment of a guardian should be construed
as sufficient to direct payment to a representative payee.
In the case of a limited guardianship, however, SSA should not automatically assume
that the incapacitated person is incapable of managing his or her own funds or directing
another to do so. It is conceivable that a court could craft a limited guardianship
permitting the incapacitated person to retain general discretion over his or her own
funds (perhaps, for example, with respect to an individual who manifests few deficits
but exhibits an inclination toward self-harm). Meanwhile, the powers of a temporary
guardian are restricted to those necessary to prevent the harm precipitating the appointment.
Id. § 5-308.
In contrast, the MUPC defines “protected person” as “a minor or other person for whom
a conservator has been appointed or other protective order has been made as provided
in sections 5-407 and 5-408.” Id. § 5-101. A conservator is “a person who is appointed by a court to manage the estate
of a protected person and includes a limited conservator, temporary conservator and
special conservator.” Id.
A court may order the appointment of a conservator where the individual “is unable
to manage property and business affairs effectively because of a clinically diagnosed
impairment in the ability to receive and evaluate information or make or communicate
decisions, even with the use of appropriate technological assistance, or because the
individual is detained or otherwise unable to return to the United States” and “the
person has property that will be wasted or dissipated unless management is provided
or money is needed for the support care and welfare of the person or those entitled
to the person’s support and that protection is necessary or desirable to obtain or
provide money.” Id. § 5-401(c)(1)-(2). A court may endow a conservator with broad 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.” Id. § 5-407(d); see also id. § 5-408(a). A finding that a conservator should be appointed, however, “is not a
determination of incapacity of the protected person.” Id. § 5-407(f). Moreover, the powers of a conservator should be limited “to the extent
necessitated by the protected person’s limitations and other conditions warranting
the [appointment of a conservator].” Id. §§ 5-407(a); see also id. § 5-416(b).
Despite the explicit disclaimer that the appointment of a conservator is not “a determination
of incapacity,” the appointment of a conservator with the full powers authorized by
§§ 5-407(a) and 5-408(a) will often equate to a finding of incompetency. Generally,
the appointment of a conservator with the fullest powers authorized by statute necessitates
the underlying substantive finding that the protected person is unable to manage his
or her own affairs.
There are two wrinkles. First, appointment of a conservator is appropriate where an
individual is “detained or otherwise unable to return to the United States.” An appointment
of a conservator under such conditions might not constitute a finding of legal incompetency
under GN 00501.010(7). Thus, SSA should be careful to screen out conservator appointments premised upon
an individual’s absence from the United States. (Of course, appointment of a representative
payee under such circumstances might be appropriate based on other grounds.). Meanwhile,
Massachusetts courts enjoy broad discretion to circumscribe the powers of a conservator.
Thus, SSA should not equate the appointment of a conservator to a finding of legal
incompetency where the protected person retains any meaningful authority over his
or her financial affairs.
Finally, we note that a “guardian ad litem” may be appointed by the court, in certain
property-related actions, to represent the legal interests of an individual who is
“a minor, a mentally retarded person, an autistic person, or person under disability,
or a person not ascertained or not in being.” Mass. Gen. Laws, ch. 190B, § 1-404(a).
While a guardian ad litem may be appointed to represent an incapacitated person, such
an appointment is likewise appropriate in various other situations that do not necessarily
connote legal incompetency. Accordingly, the appointment of a guardian ad litem should
not be viewed as conclusively establishing legal incompetency.
Accordingly, we recommend the following changes to the Massachusetts entry in the
Conditions Under Which Ruling/Appointment Constitutes a Finding of Legal Incompetency:
The appointment of a guardian, without limitation, over an incapacitated person equates
to a finding of legal incompetency. Under such circumstances, the incapacitated person
has been deemed incapable of meeting the basic requirements of physical health, safety,
or self-care. It follows that the incapacitated person cannot manage his or her own
Term for Person Appointed:
Conditions Under Which Ruling/Appointment Might Not Constitute Legal Incompetency:
The appointment of a limited guardian, temporary guardian, guardian ad litem, or conservator
does not necessarily equate to a finding of legal incompetency. These appointments
do not necessarily constitute findings that an individual is incapable of managing
his or her own affairs. The court order should be examined to determine whether it
divests the incapacitated person or protected person of the authority to manage his
or her property or direct another to do so. If necessary, the court should be contacted
to ascertain the scope of the order.
Term for Person Appointed:
Limited Guardian, Temporary Guardian, Guardian Ad Litem, Conservator
As a coda, we note that the authors of various entries in the Digest have espoused
inconsistent positions with respect to the law in states that have substantially adopted
the UPC. See http://www.law.cornell.edu/uniform/probate.html (providing partial list of states that have adopted version of UPC). For example,
the Alaska, Idaho, and South Dakota entries indicate that the appointment of a conservator
suffices to establish legal incompetency. The Colorado, New Mexico, North Dakota,
and South Dakota entries do not differentiate between guardians and limited guardians
for purposes of recognizing incompetency. The Hawaii entry does not mention the appointment
of a conservator at all. The Montana and Utah entries take the position that even
the appointment of a full guardian does not constitute a finding of incompetency.
This list of possible inconsistencies is not exhaustive. While many of the contradictory
interpretations may be debatable, it would seem prudent for SSA to adopt a uniform
interpretation with respect to substantively identical UPC provisions. Therefore,
it might be wise, at some point, to undertake a project to verify whether these and
other deviations are justified by the version of the UPC adopted, specific legislative
modifications, or divergent state-court interpretations.
Mark J. M~
Assistant Regional Counsel, Region I