From the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA) newsletter. Guest commentator Attorney Michael Hooker of Northampton, Massachusetts.

Question from Nursing Home Admissions Office: Our lawyers are now telling us that no one who is under Guardianship can be admitted to our nursing home unless the Probate Court has given its permission. What is this about?

Answer: In July, 2009, a sweeping new law regarding guardianships in Massachusetts took effect. The changes were made partly because of abuses highlighted in a Boston Globe spotlight article claiming elder’s rights were being trampled in Probate court in Boston.

The new law, called the Uniform Probate Code, has rigorous requirements to determine whether an elder is unable to make decisions about care, treatment and living situation, and whether someone else should take control of that decision making power. One section of the new law even requires any Guardian to get special permission from the Probate Court BEFORE a person can be admitted to a nursing home:

M.G.L. 190B § 5-309 Powers, Duties, rights and immunities of guardians, limitations … (g) No guardian shall have the authority to 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.

Isn’t it curious that family members sign people of limited capacity into nursing homes all the time? But now, if they happen to be the person’s Guardian, they have to go through a tortuous probate process first. Dealing with the delay and cost of probate court has often been painful. For many people, it will now be even more painful, and expensive. I just received a $350 bill from the newspaper for the longer legal notices required under the new law. Additionally, many cases will now require two legal notices: one for the Guardianship and another one for a Conservatorship.

The new special authority needed for a nursing home admission is similar to Rogers cases, for nursing home residents who need antipsychotic medication. Hundreds (if not thousands) of nursing home residents receive those meds. Does every one of them have a Guardian? No way.

I have told each of the facilities I represent about the new law. But the reality is, they need to fill beds. What happens if they say: “Gee Mike, thanks for the advice about the new law, but we’re going to accept Mrs. Jones without court permission.” Is the Probate Court going to slap them? To me the big question is: will the new law be enforced by inspectors from the Department of Public Health? We don’t know.

The new law does give great deference to a previously signed Power of Attorney or Health Care Proxy. Tell your patients and their families they can save themselves so much grief by having a an elder law attorney prepare a good POA and Health Care Proxy for them, to manage finances and health care decisions, and avoid Guardianship!

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