We frequently receive calls from people looking to act on behalf of a family member or loved one who has lost capacity and is no longer able to manage decision making for themselves. When that person does not have an effective Health Care Proxy or Durable Power of Attorney in place, the next step is to pursue the appointment of a guardian or conservator, or both, depending on the circumstances.
What is Guardianship and Conservatorship?
In Massachusetts, the appointment of a guardian and the appointment of a conservator involve distinct legal actions brought in Probate and Family Court. In both, the petitioner must demonstrate good cause as to why the appointment is appropriate and necessary, along with recent medical information to support the same. The judge will tailor the appointment to meet the needs of the individual involved, such that the appointment may be limited in time or scope, or the individual may retain specific powers. There is a high level of scrutiny in the proceedings and there are strict reporting requirements following the appointment because both involve a high loss of freedom for the individual.
Generally, guardianship involves the protection of an incapacitated person, which is a person who is unable to make or communicate decisions required to meet basic personal needs. A guardian takes care of the incapacitated person’s overall health, safety, and well-being. The authority granted to a guardian is like that granted to a health care agent in a thorough Health Care Proxy.
Conservatorship involves the management of property and business affairs for a protected person. A protected person is unable to manage property and business affairs effectively or who has property that will be wasted or dissipated without proper management. A conservator has similar authority to an attorney-in-fact named in a Durable Power of Attorney.
It is possible for a person to have a properly executed Health Care Proxy, but need assistance with financial and legal matters, or vice versa. When there is a need for both a guardian and a conservator, separate petitions must be filed with the court, but they may be consolidated for hearing.
Can Guardianship and Conservatorship be avoided?
With advance planning, it is possible to avoid the need for a court-appointed guardian or conservator. By executing a comprehensive Health Care Proxy and Durable Power of Attorney, the proper language will be in place to ensure that a person of your choosing will be able to act as your health care agent or your attorney-in-fact if the need arises.
A Guardianship CANNOT
|A Conservatorship CANNOT