| Massachusetts guardianship & conservatorship frequently asked questions answered by Attorney Stephanie Konarski
When is a guardianship and/or conservatorship necessary and appropriate? How can I become a guardian or conservator? How long does this appointment last? What authority does the guardian have? What authority does the conservator have? What are the responsibilities of the guardian? What are the responsibilities of the conservator? What are the alternatives to guardianship and/or conservatorship? What is a Roger's Guardianship?
What is guardianship?Guardianship is a legal relationship whereby the Probate Court gives a person (the guardian) the power to make personal and/or financial decisions for another (the protected person). This may include making decisions concerning his or her personal and/or medical needs. A guardian may be appointed when a Probate Court determines that an individual is unable to care for himself or herself by reason of minority, mental illness, mental retardation or physical incapacity. A guardian may determine where the ward will live, what type of medical treatment he or she receives, and most other aspects of the protected person's life.
What is conservatorship?Conservatorship is a legal relationship whereby the Probate Court appoints a person (the conservator) the power to take financial responsibility and control over the assets of another person (the protected person). A conservator may be appointed when a Probate Court determines that an individual is unable to care for his or her finances by reason of minority, mental illness, mental retardation or physical incapacity. A conservator may take possession of the protected person's assets and is obligated to protect, invest and use them for the protected person's benefit.
When is a guardianship and/or conservatorship necessary and appropriate?If you have not given anyone legal authority to act in your place (via the use of a durable power of attorney and/or a health care proxy) and you are no longer able to make your own decisions regarding health care and financial matters, the court might be asked to appoint someone to take responsibility for your affairs. However, if there are disagreements regarding placement or medical care, a guardianship may be needed even when there is a durable power of attorney or health care proxy. Guardianship and/or conservatorship are appropriate only when impaired judgment or capacity poses a major threat to a person's welfare. Neither is appropriate when a person merely shows poor judgment or has difficulty making decisions. A medical evaluation by a licensed physician is required to establish the proposed protected person's condition. However, because guardianships and conservatorship result in a substantial loss of liberty for the protected person, only a court can determine the need for a guardian or conservator.
How can I become a guardian or conservator?Assuming that a physician will attest to the protected person's incompetence, a petition must be filed with the Probate Court requesting the appointment of a guardian and/or conservator. Two petitioners must sign the petition and the proposed guardian/conservator must file a bond with or without sureties with the court. Then, the court directs that the heirs of the protected person and the protected person himself or herself receive notice of the filing of the petition of guardianship. The court sets a date by which anyone wishing to object may do so, including the proposed protected person. A hearing is then held where a judge decides whether a guardian and/or conservator should be appointed.
How long does this appointment last?A temporary appointment can last 90 days. A permanent appointment may last until the death of the protected person or the guardian/conservator, until the protected person is able to establish that he or she is competent, or until the guardian/conservator resigns or is removed by the Probate Court.
What authority does the guardian have?There are full and limited guardians. The guardian has only the powers specified by the court. Unless limited by the court, the guardian has complete control over the personal decisions of the protected person. This includes deciding where the protected person will live, determining how the protected person's funds will be spent and making routine medical decisions for the protected person. However, the guardian must seek the approval of the court (1) for medical decisions involving extraordinary medical care, (2) the administration of anti-psychotic drugs, or (3) commitment to a mental health facility.
What authority does the conservator have?There are full and limited conservators. The conservator has only the powers specified by the court. Unless limited by the court, the conservator has complete control over the financial decisions of the protected person. This includes taking possession of the protected person's assets, paying bills, filing and paying taxes, protecting, investing and using the protected person's assets for his or her benefit. However, the conservator must seek the approval of the court for the sale of the ward's real estate or other property.
What are the responsibilities of the guardian?The guardian is responsible for the protected person's care, comfort, health, and maintenance. The guardian makes routine medical decisions for the ward. The protected person has no more authority to make these decisions for himself for herself.
What are the responsibilities of the conservator?The conservator must account carefully for all of the protected person's income and any expenditures made on his or her behalf. This is accomplished by the conservator filing an inventory listing the protected person's assets with the court as of the date of appointment and by filing annual accounts with the court detailing all the income and expenses the protected person has. A final account must be filed when the conservatorship is terminated. The conservator is liable for her acts until the court approves the account.
What are the alternatives to guardianship and/or conservatorship?When a guardian or conservator is appointed, the protected person loses independence and autonomy, as well as the power to exercise many legal rights. There are several less restrictive alternatives to guardianship and/or conservatorship. These include durable powers of attorney, representative payees, trusts and health care proxies. Each of these options may avoid or delay the need of a guardian or conservator. However, a person needs to execute these documents while he or she has the requisite mental capacity to do so.
What is a Roger's Guardianship?A Rogers guardianship enables the guardian to obtain specific authority to make decisions for extraordinary medical treatment of a ward. Extraordinary medical care includes invasive medical care, treatment with antipsychotic medication, admission to a mental health facility, or withholding of treatment. |
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