Guardianship of an Adult

Massachusetts Guardianship Association (MGA)

Guardianship of an Adult

If an adult is unable to make effective decisions about personal care, health, and safety due to a clinically diagnosed condition, and the adult has not previously appointed a person to make medical decisions on his or her behalf, the Massachusetts Court can appoint a Guardian for the adult. In Guardianship, the adult is called an Incapacitated Person. The Guardian protects the Incapacitated Person’s personal rights and autonomy, and makes personal and medical decisions on the adult’s behalf.

1. What is Guardianship?

Guardianship is a protective legal process where the Massachusetts Court may appoint a person or agency called a Guardian, to make personal decisions on behalf of another person, called an Incapacitated Person.

On July 1, 2009 the revised and modernized Guardianship law went into effect in Massachusetts. The goal of the revised law is to maximize the self-reliance and independence of adults with disabilities, while ensuring adults receive essential care for their health, safety, and well being.

2. Who is an Incapacitated Person?

An Incapacitated Person is an adult who has a clinically diagnosed medical condition that results in an inability to receive and evaluate information or make or communicate decisions. The adult lacks the ability to make effective decisions about his or her everyday personal care, health and safety. If the Court determines the adult is an incapacitated person and guardianship is appropriate, it may appoint a Guardian to advocate for the adult’s autonomy and make personal and medical decisions on the adult’s behalf.

3. What is a Limited Guardianship?

A Limited Guardianship is favored under the new law and recognizes that an adult may lack decisional capacity in some areas, and still have the ability to make personal decisions in other areas of his or her life. The Court tailors the guardianship to preserve the adult’s rights and liberties to the fullest extent, and limits the Guardian’s decision making powers to areas where the adult can no longer make effective decisions. The Court sets out the Guardian’s specific powers and duties in the Decree and Order and Letters of Appointment.

4. Who can be appointed Guardian of an Incapacitated Person?

Any qualified adult can be appointed Guardian. For example, a Guardian may be:

A spouse or a friend caring for a senior diagnosed with dementia, Alzheimer’s, or stroke
A parent caring for a young adult with an intellectual disability
A parent or adult sibling caring for a family member diagnosed with a mental illness, a physical incapacity, a brain injury, or a chronic illness.

5. What does a Guardian do?

A Guardian makes personal decisions for an incapacitated adult only as necessary to protect the adult from harm, as stated in the Decree and Order. A Guardian’s duties generally include arranging for:

A safe and appropriate (least restrictive) living situation
Everyday basic needs and safety
Ordinary medical treatment and doctor visits
Social, educational, and recreational needs
Application for health insurance and other benefits
Payment of adult’s expenses using the adult’s income
Future needs and expenses

A Guardian’s duties have expanded under the revised law. A Guardian is required to consider the adult’s expressed desires and personal values in decision-making and act in the adult’s best interest, encourage the adult to participate in decision-making whenever possible, and help the adult develop or regain the capacity to manage his or her own personal affairs.

6. What is the difference between a Guardian and a Conservator?

A Guardian is appointed to make personal decisions on behalf of an incapacitated adult. A Conservator is appointed to make financial decisions regarding money, property, and business affairs on behalf of an impaired or incapacitated adult. A Guardian can receive moderate amounts of the incapacitated adult’s money and apply it for the adult’s care and support. If there is a substantial amount of money under the Guardian’s control, or for example, a bank account to manage, the Court may require a Conservator be appointed.

One adult can be appointed both Guardian and Conservator by filing separate petitions: A Petition for Guardianship and a Petition for Conservatorship. A Guardian and Conservator are two separate roles with different responsibilities to the adult and to the Court.

7. Who can Petition the Court for Guardianship?

Any person interested in the adult’s welfare, or the adult, can file a Petition for Guardianship asking the Court to appoint a Guardian. The Petitioner, the person who files the Petition, is often the same person who asks to be appointed Guardian. However, the Petitioner and Guardian can be two different people or agencies.

8. What are the rights of a proposed Incapacitated Person or respondent?

After a Petition for Guardianship is filed with the Court by the Petitioner, a guardianship hearing is scheduled. At a hearing the Court will determine if the adult is incapacitated, and if so, whether a guardianship is appropriate. Before making a protective appointment of a Guardian, the Court must consider the proposed incapacitated person or respondent’s due process rights. Those rights include:

The right to an attorney, where the incapacitated adult or anyone on the adult’s behalf can request an attorney be appointed, anytime during the guardianship process. The Court may appoint an attorney if it determines the adult’s interests are not adequately protected.
The right to notice that a petition has been filed and the date, time, and place of the hearing. Notice must be properly given to all interested persons, which has been expanded under the revised law to include the adult, his/her heirs, domestic partners or anyone the adult has lived with 60 days prior to filing the petition, and others.
The right to a hearing and the right to be present at the hearing.
The right to object to the appointment of a Guardian and present evidence and cross-examine witnesses.

9. What if there is an emergency situation and a proposed incapacitated person needs help right away and there is no one with the authority to make legal decisions?

A Temporary Guardian may be appointed if the Court finds a true emergency exists that would likely result in immediate and substantial harm to the adult, and there is no one with the legal authority to make decisions. The Temporary Guardian can be appointed for up to 90 days to act on the adult’s behalf to prevent the harm, while a Petitioner completes the necessary steps to obtain a permanent guardianship.

10. What are the limits to a Guardian’s decision-making authority?

A Guardian’s authority is limited to what the Court grants in the Decree and Order and Letters of Appointment at the guardianship hearing. If not in the Decree and Order, a Guardian must ask for the Court’s approval to:

Expand, lessen, or change his or her decision-making powers
Admit an adult to a nursing home facility
Admit or commit an adult to a mental health or a developmentally disabled facility
Authorize the use of anti-psychotic drugs
Authorize extraordinary medical treatments
Resign or terminate the guardianship while the adult is alive
Revoke a Health Care Proxy

11. After being appointed, what responsibilities does the Guardian have to the Court?

Serving as Guardian means you have an on-going legal relationship with the Court. The Court oversees the guardianship and monitors the well-being of the adult. Every Guardian has a duty to fill out and submit a Guardian’s Care Plan/Report to the Court. The first Care Plan/Report is called an Initial 60 Day Care Plan and is due within 60 days from the date the Guardian was appointed. The Guardian must also submit an Annual Report, due every year on the anniversary date of the appointment, for as long as one remains Guardian.

12. Where do I find more information and court forms?

The Massachusetts Probate and Family Court offers guardianship information and resources on its website. Go to: http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc.html

Additionally, some divisions of the Probate and Family Court maintain their own websites with information on filing a guardianship petition. Search on-line under the county name and Probate and Family Court, i.e. Plymouth Probate and Family Court or Suffolk Probate and Family Court.

For Notice Requirements:

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/articles-1-5-glc-190B.pdf

For the Guardian Care Plan/Report (Form MPC 821):

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

For Legal Services for Low Income Clients:

Contact local legal aid or Senior Partners for Justice/ Volunteer Lawyers Project. 617- 603-1700 or 1-800-342-LAWS

For Family Guardianship Clinics, offering help to low-income eligible adults in filling out the Adult Care Plan/Report & Adult and Minor Guardianship Petitions:

http://www.spfj.org/MSex_Gship.htm

http://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upc.html

Was this helpful? What other questions or topics would you like to know more about? Email your suggestions to Ellen M. DiPaola, Esq., MGA Information and Resources Chairperson, edipaola@comcast.net. Please do not send personal or confidential information. Thank you.

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