Adults are presumed to be able to make their own decisions unless a court determines that they’re not.
When an adult is incapable of making sound decisions due to a developmental disability, accident or illness, the court can appoint a guardian to make decisions on their behalf. In Massachusetts, guardianships are generally used for personal decisions, and conservatorship are used for financial decisions. If you have a loved one that you believe lacks capacity and doesn’t have a power of attorney or health care proxy in place, it’s important to speak to an experienced Fall River, Massachusetts guardianship attorney about commencing a guardianship proceeding. The Botelho Law Group is the most well-respected guardianship firm in Fall River Massachusetts. Call (888) 269-0988 to schedule a free confidential consultation.
What Is a Guardianship In Massachusetts?
Guardianship in Massachusetts is a probate court process to appoint a guardian to handle the personal affairs of an incapacitated adult or minor child. It creates a legal relationship between an adult and a person that lacks the capacity to make important decisions on their own. This is a step that must be considered whenever a child with developmental disabilities approaches the age of 18. A guardianship can provide a parent or other adult the ability to make decisions for their adult offspring and protect them for those that might try to take advantage of them due to their disability. There are also situations when adults lose their capacity due to an accident or illness that causes a severe impairment, and a guardian needs to be appointed to make decisions on their behalf. A guardianship can be temporary, permanent, special or limited. Guardians do not handle financial matters, and in many cases a conservator is appointed for that purpose. The same person can serve as both guardian and conservator.
What Constitutes Incapacity For Guardianship in Massachusetts?
The first step in the process is to prove that the person in question meets the legal standard for incapacity. Massachusetts law defines incapacity as somebody that “for reasons other than advanced age, has a clinically diagnosed condition that results in the inability to receive and evaluate information,” or lacks the ability to communicate their decisions, even with technological assistance. It requires medical evidence from a certified healthcare provider of the existence of the condition. It is not enough to show that the person has been diagnosed with Alzheimer’s, it must be shown that the disease has progressed to the point that they are no longer able to make responsible decisions. Similarly, it is not enough to have an IQ that’s below average, intellectual disability is defined as an IQ of less than 70, plus limitations in self-care, safety, health and social skills. Mental illness must be severe enough to render the person incapable of coping with the ordinary demands of life.
How to Apply for Guardianship in Massachusetts?
The Guardianship Process in Massachusetts
In Massachusetts, guardianship is obtained through petition to the Probate and Family Court. It’s not an automatic process even for the parent of an incapacitated child that’s turning 18. Any person that is interested in the welfare of an alleged disabled person has standing to file a petition. The court will not appoint a guardian that has pending charges against them for assault and battery for causing serious injury to or neglecting the person that’s allegedly incapacitated. The court will review the medical evidence presented and the background of the proposed guardian and make a determination for or against the guardianship petition. The alleged incapacitated person has a right to object to the guardianship and may hire counsel or have counsel appointed on their behalf. If the court approves the guardianship, the guardian will be responsible for the routine needs of the incapacitated person but would need to petition the court for a “Rogers Guardianship” to have the power to substitute their judgment on the use of anti-psychotic medications and other invasive interventions.
Massachusetts and Rhode Island Guardianship Attorneys
If you’re the parent of an incapacitated child that’s approaching the age of 18 or have a loved one that’s lost capacity due to an accident or illness, it’s important to get legal advice about what can be done to protect them. The Botelho Law Group is the Fall River, Massachusetts that more people trust to handle these important matters. Call (888) 269-0988 to schedule a free confidential consultation.
CLICK HERE to return to ESTATE PLANNING main page
Joseph F. Botelho, Esq.
BOTELHO LAW GROUP
Attorneys At Law
901 Eastern Ave.
Fall River, MA 02723