While we always emphasis the importance of planning ahead with our clients, for many reasons, it is sometimes not possible. When a loved one does not have the appropriate planning documents in place and reaches a point in life when, due to loss of physical and/or mental capacity, they cannot effectively make sound decisions for their own personal, medical, and/or financial matters, a Guardianship or Conservatorship may be necessary.
Who needs a Guardianship?
Ideally, you and each of your loved ones ages 18 and older will have named someone through Estate Planning documents such as a Health Care Proxy and Durable Power of Attorney, to step into your shoes to make important life decisions in case of illness or injury. If those documents are not in place, it may become necessary for a Guardian and/or Conservator to be appointed by a court for persons who lack the physical and/or mental capacity to care for themselves.
What is Guardianship?
Once appointed by a court, a Guardian is responsible for making decisions about the person’s day-to-day life such as where the person lives. Additionally, the Guardian is responsible for making decisions related to medical care, including, with court approval, decisions affecting end-of-life. A Guardian is charged with making decisions based on the best interest of the person, taking into consideration their desires and personal values, where possible. At all times, a Guardian must exercise reasonable care, diligence, and prudence in their decision making.
What is a Conservatorship?
Once an individual has been deemed incompetent by a court, a Conservator will be appointed to handle all matters related to the person’s finances. This may include paying bills, living and medical expenses, managing income, retirement accounts, and property that the person may receive or own. A Conservator may also be appointed if there are verified concerns that the individual has been subjected to undue influence or scams. The Conservator must follow the prudent investor standard, choosing investments that will have a low probability of loss.
How is a Guardian and/or Conservator appointed?
Becoming a Guardian is a rigorous, time-consuming, and expensive process. When the Massachusetts Probate and Family Court names a Guardian or Conservator, the Protected Person is, to a degree, losing a certain amount of freedoms and rights. The Court must be satisfied, and has put in the safeguards to make sure, the nominated Guardian and/or Conservator has the Protected Person’s best interest in mind, and is suitable for the role.
The proposed Guardian or Conservator starts the process by filing the various court documents with the appropriate Probate and Family Court. Any petition for guardianship or conservatorship must be accompanied by a medical certificate. The determination of someone’s competency is always a medical one, and is completed and signed by a physician, psychologist, or psychiatric nurse. The medical certificate is only valid for 30 days from the date of the examination. If the Petition is allowed by the Court, then a Guardian/Conservator will be appointed, and the Court will grant them the legal authority to act on behalf of the Protected Person.
What is the difference between Guardianship and Conservatorship?
Guardianship is limited to making only those decisions that will meet the level of need required by the Protected Person. These decisions may include:
- Choice of where the loved one resides;
- Acceptance or denial of medical care;
- Control of food, clothing, and shelter;
- Estate and asset preservation planning and protection; and
- Restriction of one’s civil rights and personal freedoms.
Conservatorship is more limited in scope and concerns only the Protected Person’s financial matters when they need assistance. If found necessary, a Conservator will be appointed make the financial decisions including the ability to:
- Make reasonable payments for the support, maintenance, and education;
- Pay lawful debts;
- Possess and manage the Protected Person’s assets;
- Collect all debts owed; and
- Engage in tax, estate and asset preservation planning.
WHO CAN BECOME A GUARDIAN?
To be a legal Guardian, the person must be over the age of 18 and be competent to care for the Protected Person. A legal Guardian cannot be incapacitated or incapable of handling the guardianship duties. The person does not have to be a relative of the Protected Person. Massachusetts does allow for two people to serve as Co-Guardians of the Protected Person. Another alternative is to name a Primary and a Successor Guardian. This sometimes occurs in situations where an elderly parent may name a sibling to take over duties for caring for a Protected Person in the event of something happening to the parent.
CAN A GUARDIAN MAKE MEDICAL DECISIONS FOR THE PROTECTED PERSON?
Yes, a legal Guardian can make medical decisions for the Protected Person. These decisions are typically limited to authorizing routine, noninvasive, non-experimental treatments. However, the Guardian must seek court authorization if antipsychotic medications need to be administered or for extraordinary medical authority. If the Protected Person needs to be treated in a mental health facility, a special court hearing is required.
WHERE DO YOU FILE A PETITION FOR GUARDIANSHIP?
A guardianship or conservatorship must be filed with the Probate and Family Court in the county in which the person resides. For example, if the Protected Person lives in Acton or Sudbury, the filing would be in the Middlesex Probate and Family Court. If the Protected Person lives out of state but is planning to move to Massachusetts, the petition would be filed in the county where the person intends to live.
CAN A GUARDIANSHIP BE TRANSFERRED TO MASSACHUSETTS?
The short answer is yes. A Guardian or Conservator appointed in another state can ask the Massachusetts Probate and Family Court to accept the transfer from another state. A separate petition must be filed with the court accompanied by several documents including the appropriate bond before the transfer will be considered.
HOW LONG DOES A GUARDIANSHIP LAST?
A temporary guardianship lasts for 90 days. A permanent guardianship does not have an end date. It typically ends in one of the following situations:
- On the passing of the Protected Person,
- The Guardian resigns, or
- The court removes the Guardian on its own initiative or at the request of another person due to incompetence, not acting in the best interests of the Protected Person, or is unsuitable for the role.