What is Guardianship of An Adult

1. What is Guardianship of an Adult?

Guardianship can be considered for an adult with a clinically diagnosed medical condition where the adult is unable to make effective personal decisions about their every day self-care, health, and safety.

For example, guardianship may be appropriate for:

  • A spouse or an elder diagnosed with dementia or Alzheimer’s disease;
  • A  young adult with an intellectual or developmental disability turning 18 years old;
  • A relative diagnosed with a mental health condition at risk for not receiving care;
  • A friend or family member with a brain injury, a chronic illness, or a physical impairment.

If the adult has not previously signed a Health Care Proxy giving a Health Care Agent the right to make personal decisions on the adult’s behalf if the adult becomes incapacitated, the Massachusetts court can step in to protect the adult’s rights and appoint a Guardian. The court can transfer some or all rights for personal decision making to the Guardian, limited to areas where the adult is impaired. The Guardian protects the incapacitated adult’s rights and independence and arranges for care and services.

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?

The law defines an incapacitated person as 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 some or all effective decisions about his or her everyday personal care, health and safety. If the Massachusetts court determines the adult is an incapacitated person and that 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 law and recognizes that an adult may lack the ability to make decisions in some areas, and still have the ability to make personal decisions in many 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.  At a Guardianship hearing, the court sets out the Guardian’s specific decision-making 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: a relative, a friend, a professional or an agency.

5. What does a Guardian do?

A Guardian makes personal and medical care decisions for an incapacitated adult only as necessary to protect the adult from harm according to the decision-making powers stated in the court’s 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 person 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. The adult who is the subject of the guardianship is referred to as a proposed incapacitated person or the respondent. At a hearing the court will determine if the respondent is incapacitated, and if so, whether a guardianship is appropriate. Before making a protective appointment of a Guardian, the court must consider the 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 on the adult’s behalf?

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 decision-making 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. What is a Guardian’s Care Plan/Report?

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 Care Plan/Report is a fill-in-the blank court form that asks the Guardian to report on the incapacitated adult’s current condition, living arrangements, financial matters, and future care.

The first Care Plan/Report that a Guardian submits 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.

You can find a blank copy of the Guardian’s Care Plan/Report at the Registry office of the Probate and Family Court, or on-line at for Form MPC 821 at www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/upcforms.html

Here’s how it works. Using a blank copy of the Guardian’s Care Plan/Report court form:

  1. Fill in every question describing the adult’s current condition, care, and treatment. If you use the form on the court website, you can fill it out on-line, save it to your computer to make additions or corrections, and print it once it is completed. Sign and date it on the last page.
  2. Give a copy of the completed Care Plan/Report to the incapacitated adult, by hand or by certified mail with a return receipt requested. If you deliver by hand you may want to get a signed receipt for your records. Complete the last section called Certification of Services which tells the Court you delivered a copy of the Care Plan/Report to the incapacitated adult.
  3. Make a copy of the completed Care Plan/Report for your records.
  4. Mail or give the completed Care Plan/Report to the Court that appointed you Guardian.
  5. Mark your calendar for when the Care Plan/Report is due next year. The court will not send a reminder.

Family Guardianship Clinics, operating weekly at some Probate and Family Courts, offer help filling out Care Plan/Reports to low income eligible clients. If not income-eligible, the Guardian can be referred to a limited assistance representation attorney by asking the staff at Registry for a list of LAR attorneys. Check for a Clinic and its operating schedule at the Probate and Family Court’s website  court , or Senior Partners for Justice website,  www.spfj.org/MSex_Gship.htm

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

Disclaimer. The MGA website is maintained exclusively for informational purposes and does not constitute legal advice. Visitors to this web site who have a legal problem should always consult an attorney for legal advice. Viewing or using the information on the website does not create an attorney-client relationship. The guest contributor’s appearance on this website is solely for informational purposes and does not constitute a referral or endorsement of their firm or business, agency or organization. The third party web sites are listed solely as a convenience, and their listing does not imply endorsement of the agencies or organizations.

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