Due to the COVID-19 pandemic, all divisions of the Probate and Family Court in Massachusetts remain closed to the public, except for emergency matters, until at least May 4, 2020. The interruption to court operations presents challenges for trusts and estates practitioners and clients as delays suspend important steps in the estate administration process, such as the appointment of personal representatives, allowance of accounts, and approval of petitions to close estates to cut off the liability of fiduciaries.
Court employees continue to report to work. However, courthouses throughout the state are closing temporarily for thorough cleaning whenever it is discovered that an individual inside the courthouse tested positive for COVID-19. The lack of normal access to the courts may prove to be especially difficult in the months ahead when the need for probate services increases as a result of increased deaths caused by the virus.
Standing orders released by the Chief Justice of the Probate and Family Court establish a number of important protocols during this period. In addition, each division of the Probate and Family Court has issued its own supplemental procedures. Protocols continue to be amended and clarified by the court as circumstances develop.
At this time, all Probate and Family Court filings for non-emergency matters should be submitted by mail or filed electronically. Electronic filings may be completed by e-mail or e-file, as directed by each court division. The Supreme Judicial Court of Massachusetts has authorized the use of electronic signatures in all courts and case types, including in court filings by attorneys and pro se parties. Clerks of the court will docket the filings, but in no case will an “event” be scheduled until on or after May 5, 2020.
In-person hearings are similarly halted, except in cases of emergencies that cannot be resolved by videoconference or telephonic hearings. In lieu of in-person hearings, the court will conduct “virtual” hearings whenever possible until normal court operations resume. Virtual hearings may be requested by contacting each court division directly. Hearings that cannot be conducted virtually will be postponed until a date after May 4, 2020.
Likewise, trials will be postponed until after May 4, 2020, or conducted virtually whenever possible. Trials that cannot be postponed or conducted virtually will be deemed an emergency matter and held accordingly.
The Probate and Family Court will hear certain matters on an emergency basis at this time. Trusts and estates attorneys, financial advisors, and associated professionals are most likely to encounter the following emergency situations with clients.
Emergency Appointment of a Special Personal Representative
Trusts and estates attorneys may see the need for the appointment of a Special Personal Representative. Special Personal Representatives are appointed in urgent situations to gain access to a decedent’s safe deposit box, conduct a will search, preserve assets of an estate, and secure an estate’s proper administration. The appointment of a Special Personal Representative is generally for a period of 90 days. It grants many of the same powers as a general personal representative but limits powers relating to selling and distributing assets.
Emergency Appointment of a Temporary Guardian and Conservator
For minors and incapacitated individuals, the court may appoint a guardian to look after the person’s health and physical well-being. The court may also appoint a conservator to handle the person’s financial affairs. Temporary guardians and conservators will be appointed by the court on an emergency basis at this time. In addition, temporary guardianships and conservatorships that expire prior to May 1, 2020, will receive an automatic, administrative 60-day extension. Practitioners should consider advising clients to execute Health Care Proxy forms and Durable Powers of Attorney whenever possible to name health care agents and attorneys-in-fact, who may carry out many of the same duties as guardians and conservators. Unlike guardians and conservators, health care agents and attorneys-in-fact do not require a court appointment to be able to act if the principal becomes incapacitated.
Other Emergency Matters
The court will hear emergency actions seeking Do Not Resuscitate (DNR) and Do Not Intubate (DNI) orders, as well as actions involving Health Care Proxies. For individuals with serious advanced illnesses, it may be advisable to execute an up-to-date Medical Orders for Life-Sustaining Treatment (MOLST) form with the assistance of a physician. The MOLST form directs a patient’s wishes regarding life-sustaining or end-of-life medical treatment, including DNR and DNI directives.
The court will consider all other exceptional and exigent matters not specifically identified in its protocols on a case-by-case basis.
The measures taken by the Massachusetts Probate and Family Court are undoubtedly similar to those being implemented by state courts across the country. If you have any questions or concerns relating to current operations of the Massachusetts probate courts and/or how the COVID-19 crisis may impact you and your family in this regard, you may wish to call the court’s Help Line at 1-833-91COURT.
Dena W. Hirsch is a trusts and estates attorney at Rackemann, Sawyer & Brewster and can be reached at [email protected].
