In Massachusetts, a guardianship case concerns certain personal or health-care decisions, while a conservatorship case concerns property or financial matters.
If someone has filed a guardianship or conservatorship petition involving you or a family member, you may wonder whether the court will appoint an attorney for the respondent, the person who is the subject of the case.
An attorney may be appointed when a guardianship or conservatorship case is first filed, or later if someone asks the court to change or end an existing guardianship or conservatorship.
What Must the Petitioner Prove?
For a guardianship, the petitioner must establish that the requested guardianship is necessary and that the respondent does not have the ability to make medical decisions for themselves even with appropriate technological assistance.
For a conservatorship, the focus is financial. The petitioner generally must establish that the respondent is unable to manage property or finances.
In both guardianship and conservatorship cases, the court grants only the authority needed based on the person’s specific circumstances and protects the person’s right to make any decisions they can safely make on their own.
When Is Counsel Appointed?
After a petition for a guardian or conservator is filed, the court must appoint an attorney if the respondent requests one, if someone requests one on the respondent’s behalf, or if the court believes the respondent’s interests may not be adequately represented. The respondent remains free to retain counsel of their own choice.
At What Stages Can Counsel Be Needed?
Counsel may be needed when the court is deciding whether to appoint a guardian or conservator, whether to grant temporary or emergency authority, or whether to expand or restrict existing powers. An attorney may also assist with a request to remove or replace a guardian or conservator, end the arrangement, review treatment or financial decisions, or appeal a court order.
What Is Their Role?
The appointed counsel only represents the respondent. They do not represent the petitioner, a proposed guardian or conservator, or the court. Counsel’s role is to provide client-directed advocacy, protect the respondent’s procedural rights, and require the petitioner to prove the legal standards for the relief requested.
Rogers and Other Substituted-Judgment Matters
Appointment as guardian does not automatically authorize every form of medical treatment. A request for authority to administer antipsychotic medication or approve another extraordinary treatment may require a separate substituted-judgment determination and a specific court-approved treatment plan. In that proceeding, counsel should develop evidence about the respondent’s present and previously expressed preferences, values, treatment history, possible benefits and adverse effects, available alternatives, and prognosis with and without the proposed treatment.
Who Pays for a Court-Appointed Attorney?
Payment depends on the respondent’s resources and the court’s order. If the respondent has enough resources, counsel generally is compensated from the respondent’s estate unless the court orders the petitioner to pay. When the court appoints counsel and the respondent cannot afford to pay the attorney, counsel is compensated by the Commonwealth or by the petitioner, as the court orders.
If the respondent cannot afford an attorney, the court may appoint one through the Committee for Public Counsel Services (CPCS). CPCS attorneys and specially trained private attorneys represent individuals in guardianship, conservatorship, and related court proceedings.
Final Thoughts
Guardianship and conservatorship orders can significantly affect a person’s autonomy, medical choices, living arrangements, and control of finances. Court-appointed counsel helps ensure that the respondent’s wishes are heard, the petitioner satisfies the required legal standards, and any order is no broader than necessary. This overview concerns primarily adult guardianship and conservatorship proceedings in Massachusetts; guardianship of minors and other case types may involve different rules. It provides general information and is not legal advice.
If you’re petitioning to serve as a guardian or conservator and are unsure whether counsel for the respondent is required, consulting with a Massachusetts guardian/conservator attorney can help ensure that you follow the correct process.
Founded by a nurse attorney and with offices in Acton, Andover, and Sudbury, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning and elder law to inform and protect loved ones of every generation.
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