The MGA follows important legislative or administrative initiatives effecting incapacitated persons, their families and their guardians or conservators and educates and informs our members and the public of developments.
7.8.2014 UPDATE: S2165 The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
S2165 is currently pending in the Senate Ways and Means Committee. There are 23 days left to the formal legislative session and the MGA, AARP, Mass Bar Association and others are working for its passage. If you’d like to lend your support, please consider contacting your legislators or Senate Ways and Means Chairman Stephen Brewer today and urge a favorable report from the committee. Stephen.Brewer@masenate.gov
FYI…..A Note from Senator Jehlen to Senate Ways and Means Committee:
Please note my support of S2165, An act relative to uniform adult guardianship and protective proceedings jurisdiction (UAGPPJA), currently awaiting action by Senate Ways & Means.
It is difficult enough for those who have little choice but to care for their loved ones under guardianship, and under current Massachusetts law, could be even more difficult as the Commonwealth is one of only a dozen or states which does not recognize guardianship orders from any other states, potentially bogging down the courts and burdening families with higher legal fees when they might have to cross state lines with their responsibilities. S2165 would help ease such administrative and financial burdens by establishing a clear process for determining which state has jurisdiction to appoint a guardian or conservator, outlining a procedure for transferring the guardianship/conservatorship, and by facilitating enforcement of guardianship and protective orders from other states by authorizing registration in Massachusetts.
Adopting UAGPPJA, via S2165, would clarify and streamline what is currently a very complex, expensive process for Massachusetts to recognize the proceedings of other states and vice versa , while it would leave the Commonwealth’s current internal process for determining guardianship intact.
I believe I am not alone voicing support for this important piece of legislation and ask that SWM take favorable action as soon as possible.
Sen. Patricia Jehlen
4.9.2014 MGA Testifies in favor of House Bill 1366, the Massachusetts Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA).
Alexandra Golden, Attorney and MGA Board Member testified on behalf of the MGA before the Joint Committee on the Judiciary in favor of the bill. The MGA is a long-standing advocate of the Uniform Adult Guardianship and Protective Proceedings Jurisdictional Act (UAGPPJA), and early on joined forces with the National Guardianship Association, and later with The Alzheimer’s Association and others to support it’s passage.
The UAGPPJA will bring clarity and predictability to guardianship cases where multiple states are involved in the legal matter. It would establish a uniform set of rules for determining jurisdiction and supply a framework that would allow state courts to communicate with each other. Read more:The Alzheimer’s Association has a helpful fact sheet.
Technical Corrections to the Mass. Uniform Probate Code –MUPC (Senate 704)
The Technical Corrections bill amends the guardianship/conservatorship provisions of Article V of the MUPC, Massachusetts General Laws c. 190B sections 501 and following. It is the product of a work group of interested stakeholders who wanted to make technical corrections and other substantive improvements to the statute. For example, in light of the difficulty in obtaining medical certificates, and the delays and expenses resulting, the bill expands the authority to execute certificates to qualified nurse practitioners. You can read the bill in its entirety on the Legislative website www.state.ma.us, click on Legislature, click on bills, and select. Click on bill history for a status report.
Update: PASSED. To read more about the technical corrections regarding Guardianship, see the MGA 2012 Winter Newsletter. Section 54 of the bill establishes the Mass. Uniform Trust Code, but Sections 25 through 49 contain technical and substantive corrections to Article V of the MUPC – amending M.G .L. c. 190B, sections 5-105 through 5-504. For example, Section 31 expands the authority to sign a medical certificate to a “certified psychiatric nurse clinical specialist, nurse practitioner”.
Public Guardianship Commission (PGC)- (S 755)
This bill would establish an independent Public Guardianship Commission. The Commission would help provide services as guardian and conservator to indigent incapacitated individuals with no involved family or friends. The PGC bill remains in the Judiciary Committee, and, while it will entail some expense, we would encourage all to advocate for its enactment. Massachusetts is one of only a handful of states having no public guardianship function, with often disastrous consequences to incapacitated persons who are indigent and have no family or friends. The Courts need an effective PGC in order to bring resources to bear to protect such persons. Read more on the MGA Newsletter, Volume I, Issue Two, www.massguardianshipassociation.org/newsletter/
Public Policy Issues
The MGA also works to address problems with current laws that are either insufficient or that could be implemented differently in order to best protect those the laws are intended to protect.
The Rudow Reinbursement
The reimbursement of guardianship fees through a deduction from a MassHealth recipient’s Patient Paid Amount (PPA), is known as Rudow reimbursement. In Rudow v. Commissioner of the Division of Medical Assistance, 429 Mass. 218 (1999), the SJC instructed MassHealth to develop a reasonable mechanism for reimbursing such costs since a medical guardian was a condition precedent to providing care for a resident who lacked the capacity to consent to such care. Following the Rudow decision, MassHealth promulgated regulations implementing that court order that provided such a mechanism – a guardian’s incurred costs were allowed by the Probate Court, in line with the limits set out in the regulation, and the expenses were recouped by diverting future income of the resident from payments to the nursing home (as part of the calculation of the so-called Paid Amount PPA) to payment of the guardian’s expenses. Such expenses are subject to limits set in the regulations and must be approved by the Probate Court. Our Public Policy Committee is working to address issues that this decision did not address (such as what happens if a person does not have a monthly income from which to make the Rudow deduction), as well as some issues in its implementation.