Mental Health Litigation Division

Practice Aids:

Forms, Rules, Standing Orders
for use in Guardianship Proceedings
under the Mass. Uniform Probate Code (G.L. c. 190B)
in the Probate & Family Court Department

	Probate Court website for all guardianship forms, instructions and rules
	Administrative Process for Uncontested "Rogers" Extensions
	Long Term Care Facility Regulations (940 CMR 4.00 - Attorney General)
Right to & Role of Counsel in Guardianship Proceedings
	Performance Standards
	Scope of counsel's representation
	Termination of counsel's representation
	Roles in Substituted Judgment Proceedings (Counsel, Court & Guardian)
	Counsel's access to client's records

PROBATE AND FAMILY COURT

PROCEDURAL OUTLINE FOR
GUARDIANSHIP OF AN INCAPACITATED PERSON
CONSERVATORSHIP OF A PROTECTED PERSON

F. APPOINTMENT OF COUNSEL: G.L. c. 190B, § 5-106(a)

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g. Scope of Appointment and Termination of Appointment.

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i. All counsel appointed to represent the Respondent shall represent the Respondent in every aspect of the matter and the representation shall be not be considered to be limited unless the Judge provides for a limitation in the Order of Appointment. This includes counsel appointed as a result of a Rogers request who shall represent the Respondent in every aspect of the underlying case. [See CPCS policy of 7/17/09, below.]

ii. With the exception of Rogers counsel, a counsel’s appointment generally terminates upon the entry of the Decree of Appointment or the Decree of Dismissal. However, in an appropriate case, in the Court’s discretion, the Court may indicate on the Decree that counsel shall continue to represent the incapacitated or protected person. The court may indicate a specific time or event in the future when counsel’s representation will terminate. Rogers counsel shall continue to represent the Respondent for purposes of the annual review. This representation is limited to the aspects of the review only unless otherwise ordered by the Court.

iii. If Rogers counsel is appointed in a matter and the Order of Appointment does not otherwise limit counsel’s representation, if the request for Rogers authority is removed or the plan has expired and is not being extended, Rogers counsel shall continue to represent the Respondent in the underlying Petition unless otherwise ordered by the Court.

Where a substituted judgment proceeding had commenced prior to, but remains pending (i.e., the initial order and treatment plan have not issued) on and after, July 1, 2009, assigned counsel may represent his or her client (the respondent) for all purposes in any concomitant pending guardianship matter. 

Where assigned counsel represents a client in an ongoing Rogers matter (e.g., for periodic reviews and extensions) and counsel learns of a pending guardianship proceeding against his or her client, counsel should inform the client of his or her right to counsel and, unless directed otherwise, counsel should file a notice of appearance in the matter (and use his or her existing Notice of Assignment of Counsel number for subsequent billing purposes).