Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 201 of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by striking out section 6 and inserting in place thereof the following section:-

Section 6. (a) A parent of a mentally ill person, two or more relatives or friends of a mentally ill person, a nonprofit corporation organized under the laws of the commonwealth whose corporate charter authorizes the corporation to act as a guardian of a mentally ill person or any agency within the executive offices of human services or educational affairs may file a petition in the probate court asking to have a guardian appointed for such mentally ill person and if, after notice as provided in section seven and a hearing, the court finds that he is incapable of taking care of himself by reason of mental illness, it shall appoint a guardian of his person and estate. A copy of such appointment shall be sent by mail by the register to the department of mental health. The court may require additional medical or psychological testimony as to the mental condition of the person alleged to be mentally ill and may require him to submit to examination. It may also appoint one or more physicians, or licensed psychologists, expert in mental illness, to examine such person and report their conclusions to the court. Reasonable expenses incurred in such examination shall be paid out of the estate of such person, by the petitioner, or by the commonwealth, as the court may determine.

(b) No guardian so appointed shall have the authority to cause to admit or commit such person to a mental health or retardation facility unless the court specifically finds the same to be in the best interests of such person and specifically so authorizes such admission or commitment by its order or decree. The court shall not authorize such admission or commitment except after a hearing for the purposes of which counsel shall be provided for any indigent, allegedly mentally ill person.

(c) No guardian so appointed shall have the authority to consent to treatment with antipsychotic medication, provided however, that the court shall authorize such treatment when it (1) specifically finds using the substituted judgment standard that the person, if competent, would consent to such treatment and (2) specifically approves and authorizes an antipsychotic medication treatment plan by its order or decree, after considering the testimony or affidavit of a licensed physician regarding such plan. The court shall not authorize such treatment plan except after a hearing for the purpose of which counsel shall be provided for any indigent mentally ill person. Said hearing shall be held as soon as is practicable; provided, however, that if the petitioner requests a temporary order on the grounds that the welfare of the ward requires an immediate authorization of treatment with antipsychotic medications, the court shall act on such request in accordance with the procedures set forth in section fourteen.

(d) The court may delegate to a guardian the authority to monitor the treatment process to ensure that an antipsychotic medication treatment plan is followed, provided a guardian is readily available for such purpose. Approval of a treatment plan shall not be withheld, however, because a guardian is not available to serve as monitor. In such circumstances, the court shall appoint a suitable person to monitor the treatment process to ensure that the antipyschotic medication treatment plan is followed. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as the court may determine.

(e) At a hearing relative to authority to cause to admit or commit or authority to administer antipsychotic medication, the court shall require the attendance of the allegedly mentally ill person unless the court finds that there exists extraordinary circumstances requiring his absence, in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively upon affidavits and other documentary evidence if it (1) determines, after careful inquiry and upon representations of counsel, that there are no contested issues of fact and (2) includes in its findings the reasons that oral testimony was not required. The court may also appoint one or more persons experienced in the evaluation, care and treatment of mentally ill persons to examine such person and report their conclusions to the court.

(f) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this chapter, for the purpose of obtaining treatment of a mentally ill person; provided, however, that such person has been informed prior to making such communications that they may be used for such purpose and has waived the privilege.

SECTION 2. Chapter 201 of the General Laws, as so appearing, is hereby amended by striking out section 6A and inserting in place thereof the following section:-

Section 6A. A parent of a mentally retarded person, two or more relatives or friends of a mentally retarded person, a nonprofit corporation organized under the laws of the commonwealth whose corporate charter authorizes the corporation to act as guardian of a mentally retarded person, or any agency within the executive offices of human services or educational affairs may file a petition in the probate court asking to have a guardian appointed for such mentally retarded person. If, after notice as provided in section seven and a hearing, the court finds that the person is mentally retarded to the degree that he is incapable of making informed decisions with respect to the conduct of his personal and financial affairs, that failure to appoint a guardian would create an unreasonable risk to his health, welfare and property, and that appointment of a conservator pursuant to section sixteen B would not eliminate such risk, it may appoint a guardian of his person and estate. The court shall not so find unless the petition is accompanied by a report from a clinical team consisting of a physician, a licensed psychologist and a social worker, each of whom is experienced in the evaluation of mentally retarded persons, that it has examined the said person and has determined that he is mentally retarded to the degree that he is incapable of making informed decisions with respect to the conduct of his personal and financial affairs. The court shall not, pursuant to this section, appoint as guardian any person or organization which, in its opinion, has any interest, responsibilities or powers which would render such person or organization unable to perform the duties of guardian in the best interest of the mentally retarded person. A copy of such appointment shall be sent by mail by the register to the department of mental health. The court may require additional testimony as to the existence and degree of mental retardation, and may require the person subject to the petition to submit to examination.

(b) No guardian so appointed shall have the authority to cause to admit or commit such mentally retarded person to a mental health or retardation facility unless the court specifically finds the same to be in the best interests of such person and specifically authorizes such admission or commitment by its order or decree. The court shall not authorize such admission or commitment except after a hearing for the purposes of which counsel shall be provided for any indigent mentally retarded person.

(c) No guardian so appointed shall have the authority to consent to treatment with antipsychotic medication, provided that the court shall authorize such treatment when it (1) specifically finds using the substituted judgment standard that the person, if competent, would consent to such treatment and (2) specifically approves and authorizes an antipsychotic medication treatment plan by its order or decree. The court shall not authorize such treatment plan except after a hearing for the purpose of which counsel shall be provided for any indigent mentally retarded person. Said hearing shall be held as soon as is practicable; provided, however, that if the petitioner requests a temporary order on the grounds that the welfare of the ward requires an immediate authorization of treatment with antipsychotic medications, the court shall act on such request in accordance with the procedures set forth in section fourteen.

(d) The court may delegate to a guardian the authority to monitor the treatment process to ensure that an antipsychotic medication treatment plan is followed, provided a guardian is readily available for such purpose. Approval of a treatment plan shall not be withheld, however, because a guardian is not available to serve as monitor. In such circumstances, the court shall appoint a suitable person to monitor the treatment process to ensure that the antipsychotic medication treatment plan is followed. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as may be determined by the court.

(e) At a hearing relative to authority to cause to admit or commit or authority to administer antipsychotic medication, the court shall require the attendance of such allegedly mentally retarded person unless the court finds that there exists extraordinary circumstances requiring his absence, in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively upon affidavits and other documentary evidence if it (1) determines, after careful inquiry and upon representations of counsel, that there are no contested issues of fact and (2) includes in its findings the reason that oral testimony was not required. The court may also appoint one or more persons experienced in the evaluation, care and treatment of mentally retarded persons to examine such person and report their conclusions to the court.

(f) Reasonable expenses incurred in any examination conducted pursuant to this section shall be paid by the petitioner, the estate of such persons, or by the commonwealth as the court may determine.

(g) The guardian of a mentally retarded person shall act to protect the welfare of such person and may utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to such person including, but not limited to, counseling services, advocacy services, legal services, and other aid as he deems to be in the interest of such person.

(h) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this chapter, for the purpose of obtaining treatment of a mentally retarded person; provided, however, that such person has been informed prior to making such communication that they may be used for such purpose and has waived the privilege.

SECTION 3. Chapter 201 of the General Laws, as so appearing, is hereby amended by striking out section 14 and inserting in place thereof the following section:-

Section 14. (a) Upon the petition of any agency within the executive offices of human services or educational affairs or other person in interest, the court may, if it finds that the welfare of a minor, a mentally ill or mentally retarded person or spendthrift requires the immediate appointment of a temporary guardian of his person and estate, appoint a temporary guardian of such minor, mentally ill or mentally retarded person or spendthrift, with or without notice, and may in like manner remove or discharge him or terminate the trust; or in the absence of a person to serve as temporary guardian, the court by order or decree may authorize and monitor, as appropriate, medical treatment; provided, however, that if the court makes the findings required in paragraph (c) it shall authorize treatment with antipsychotic medication and shall, in the absence of a person to serve as temporary guardian, appoint a suitable person to monitor the treatment process to ensure that the treatment plan approved by the court is followed. A temporary guardian may proceed and continue in the execution of his duties, notwithstanding an appeal from the decree appointing him, until it is otherwise ordered by the supreme judicial court, or until the appointment of a permanent guardian, or until the trust is otherwise legally terminated. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as the court may determine.

(b) No temporary guardian so appointed shall have the authority to cause to admit or commit such minor, mentally ill or mentally retarded person or spendthrift to a mental health or retardation facility unless the court specifically finds the same to be in the best interests of such person and specifically authorizes such admission or commitment by its order or decree.

(c) No temporary guardian so appointed shall have the authority to consent to treatment with antipsychotic medication, provided that the court shall authorize such treatment when it (i) specifically finds using the substituted judgment standard that the person, if competent, would consent to such treatment and (ii) specifically approves and authorizes an antipsychotic medication treatment plan by its order or decree.

(d) The court shall not authorize such admission or commitment or treatment with antipsychotic medication except after a hearing for the purpose of which counsel shall be provided for any indigent person subject to such admission or commitment or such treatment and the court shall require the attendance of such person at such hearing unless the court finds that there exists extraordinary circumstances requiring his absence, in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively on affidavits and other documentary evidence if it (1) determines after careful inquiry and upon representation of counsel, that there are not contested issues of fact, and (2) includes in its findings the reasons that oral testimony was not required; provided, however, that in cases of extreme emergency the court may authorize an admission or commitment by an ex parte proceeding, if it finds that the remedies under the emergency provisions of section twelve of chapter one hundred and twenty-three are not applicable or would not be available to deal with the present emergency.

(e) No separate petition shall be necessary for the appointment of a temporary guardian, and, except as otherwise specified herein, the procedures relative to filing, notice, hearings, and related matters normally incident to equitable proceedings and relief prior to final decree, shall apply to these proceedings, provided that a hearing on a request to authorize the administration of antipsychotic medication shall be held as soon as is practicable, and the principles of equity normally applicable to the issuance, denial and expiration of temporary or preliminary relief and orders shall also so apply.

(f) Whenever a temporary guardian is so appointed, the decree or order shall indicate the nature of the emergency requiring such appointment and the particular harm sought to be avoided, and shall state that the temporary guardian so appointed is only authorized to take such actions with regard to the ward as are reasonably necessary to avoid the occurrence of that harm.

(g) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this section, for the purpose of obtaining treatment of a mentally ill or mentally retarded person; provided, however, that such person has been informed prior to making such communications that they may be used for such purpose and has waived the privilege.

SECTION 4. The court shall, as soon as is practicable, promulgate rules establishing the maximum number of days within which a hearing shall be held on any petition seeking the appointment of a guardian, under section six or six A, or a temporary guardian, under section fourteen, authorized to consent to the administration of antipsychotic medication; provided, however, that pending the promulgation of such rules, the chief justice of the probate court department shall issue directives establishing such maximum time periods as he deems appropriate.