[Text of section effective until July 1, 2009. Repealed by 2008, 521, Sec. 21. See 2008, 521, Sec. 44.]
Section 14. (a) Upon the petition of any agency within the executive office of health and human services or the boards of education or higher education 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 person unable to make or communicate informed decisions due to physical incapacity or illness 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 person unable to make or communicate informed decisions due to physical incapacity or illness 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; provided, however, that authority to consent to the administration of antipsychotic medications may not be granted to any guardian appointed for a person unable to make or communicate informed decisions due to physical incapacity or illness.
(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.
[Text of section effective until July 1, 2009. Repealed by 2008, 521, Sec. 21. See 2008, 521, Sec. 44.]
Section 14. (a) Upon the petition of any agency within the executive office of health and human services or the boards of education or higher education 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 person unable to make or communicate informed decisions due to physical incapacity or illness 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 person unable to make or communicate informed decisions due to physical incapacity or illness 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; provided, however, that authority to consent to the administration of antipsychotic medications may not be granted to any guardian appointed for a person unable to make or communicate informed decisions due to physical incapacity or illness.
(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.
[Text of section effective until July 1, 2009. Repealed by 2008, 521, Sec. 21. See 2008, 521, Sec. 44.]
Section 14. (a) Upon the petition of any agency within the executive office of health and human services or the boards of education or higher education 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 person unable to make or communicate informed decisions due to physical incapacity or illness 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 person unable to make or communicate informed decisions due to physical incapacity or illness 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; provided, however, that authority to consent to the administration of antipsychotic medications may not be granted to any guardian appointed for a person unable to make or communicate informed decisions due to physical incapacity or illness.
(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.
