2010 Massachusetts Code
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE II DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES, GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
CHAPTER 201 GUARDIANS AND CONSERVATORS
Section 38 Management of estate; support of ward and family; custody of wills; estate plan

[Text of section effective until July 1, 2009. Repealed by 2008, 521, Sec. 21. See 2008, 521, Sec. 44.]

Section 38. He shall manage the estate of his ward frugally and without waste, and shall, except as otherwise provided, apply the same, so far as may be necessary, to the comfortable and suitable maintenance and support of the ward and his family. If the income and profits are insufficient for that purpose, he may sell the real estate upon obtaining a license therefor, and shall apply the proceeds of such sale, so far as may be necessary, for the maintenance and support of the ward and his family. Such license and the application therefor shall state whether the ward is married or single. He shall have custody of all wills, codicils, and other instruments purporting to be testamentary dispositions executed by his ward.

The probate court, upon petition of a conservator or guardian, other than the guardian of a minor, and after such notice to all other persons interested as it directs, may authorize such conservator or guardian to exercise any or all powers over the estate and business affairs of the ward which the ward could exercise if present and not under disability. The court may authorize the taking of such action, or the application of such funds as are not required for the ward’s own maintenance and support, in such fashion as the court shall approve as being in keeping with the ward’s wishes so far as they can be ascertained. In ascertaining and carrying out the ward’s wishes the court may consider, but shall not be limited to, minimization of state or federal income, estate or inheritance taxes, and provisions of gifts to such charities, relatives and friends as would be likely recipients of donations from the ward. The ward’s wishes as best they can be ascertained are to be carried out, whether or not tax savings are involved.

Such action or application of funds may include but shall not be limited to the making of gifts, to the conveyance or release of the ward’s contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to the exercise or release of his powers as donee of a power of appointment, the making of contracts, the creation of revocable or irrevocable trusts of property of the ward’s estate which may extend beyond his disability or life amendment of any such trust which is revocable or amendable, the exercise of options of the ward to purchase securities or other property, the exercise of his rights to elect options and to change beneficiaries under insurance and annuity policies, and the surrendering of policies for their cash value, the exercise of his right to an elective share in the estate of his deceased spouse, and the renunciation or disclaimer of any interest acquired by testate or intestate succession or by inter-vivos transfer.

The guardian or conservator in his petition shall briefly outline the action or application of funds for which he seeks approval, the results expected to be accomplished thereby and the tax savings, if any, expected to accrue. The proposed action or application of funds may include gifts of the ward’s personal property or real estate, but transfers of real estate shall be subject to the requirements of chapter two hundred and two. Gifts may be for the benefit of prospective legatees, devisees or heirs apparent of the ward or may be made to individuals or charities in which the ward is believed to have an interest. The conservator or guardian shall also indicate in the petition that any planned disposition is consistent with the intentions of the ward insofar as they can be ascertained, and if the ward’s intentions cannot be ascertained, the ward will be presumed to favor reduction in the incidence of the various forms of taxation and the partial distribution of his estate as herein provided. The conservator or guardian shall not, however, be required to include as a beneficiary any person whom he has reason to believe would be excluded by the ward.