When an adult becomes disabled and unable to manage their own affairs, protecting their interests may require legal action. People of advancing age often create a durable power of attorney as part of an estate plan, which will usually avoid the necessity of a court proceeding for a guardianship or a conservatorship. If a person becomes incapacitated without a durable power of attorney, an experienced Massachusetts guardianship attorney can help you create a guardianship for personal affairs and/or a conservatorship financial affairs that allows you to act in the best interests of your loved one.
What Is A Guardianship?
A guardianship is a legal proceeding where a person is appointed to care for a minor child or an adult that is incapacitated. The guardianship can be general or limited in scope. The court always tries to narrow the guardianship as much as possible, allowing the incapacitated person to participate in decisions as much as their condition allows. That’s why a general guardianship will usually only be ordered for somebody in a coma or otherwise completely incapacitated. If you have a close relative that has become unable to manage their personal affairs, it’s important to speak to an experienced Massachusetts guardianship attorney as soon as possible.
Responsibilities Of A Guardian
A guardian is appointed to make medical and personal decisions for a person that’s incapacitated such as choosing where they live, what medical treatments are appropriate and ensuring that their daily needs are being met. These are some examples of the duties of a guardian for an adult:
- Arrange for medical care and make medical decisions;
- Provide social and physical activities;
- Apply for Medicare, Medicaid, Social Security and other benefits and
- Ensure a healthy and safe environment.
The responsibilities of a guardian require that they don’t merely substitute their own judgment, but try their best to make decisions based on what they believe the incapacitated adult would want. Guardians are also required to do everything possible to help the adult regain their capacity to handle their own affairs.
Guardianship vs. Conservatorship?
Whereas a guardian is appointed to make personal decisions for someone that lacks capacity, a conservator is appointed in a similar manner for an incapacitated adult to make financial decisions that they lack to capacity to make on their own such as:
- Paying taxes and other liabilities;
- Maintaining real estate;
- Entering into contracts and
- Maintaining a business.
When an adult become incapacitated without a durable power of attorney in place, it’s usually prudent to petition the court for both a guardianship and a conservatorship.
What Is The Process For Obtaining A Guardianship or Conservatorship?
The first step is for an interested person to file a Petition for Appointment and a Medical Certificate of Incapacity completed within the last thirty days, with the Probate and Family Court. The filing must notice all potential interested parties and the person that is the subject of the proposed guardianship and/or conservatorship. You can seek either a temporary or permanent appointment, but the most common appointment is for ninety days and is renewable with continuing medical backup.
Who May Serve As A Guardian or Conservator?
Any person over the age of eighteen that resides in the United States is eligible to become a guardian or conservator in Massachusetts. You don’t need to be a relative of the incapacitated person, but you must be approved by the Probate court as competent to care for the incapacitated person and have no criminal record with the Department of Children and Families.
How Does A Guardianship End?
A temporary guardianship can end simply by not renewing it when it expires. A permanent guardianship ends when any of the following conditions is met:
- The guardian passes away;
- The incapacitated person passes away;
- The court orders that the person is no longer incapacitated or that there is insufficient evidence that the inacapacy continues or
- The guardian is removed by the court.
Guardianships and conservatorships are a last resort when an adult becomes incapacitated without a durable power of attorney in place to protect their interests during their incapacity. If you have a relative that you believe lacks capacity and would benefit from a guardianship or conservatorship, it’s important to speak to an experienced Massachusetts guardianship about getting the process started.