What is a guardian in Massachusetts?
A guardian is a person who is legally appointed by a Massachusetts Probate and Family Court to do the following for another person:
- Act in the incapacitated persons best interests, taking their personal values and wishes into consideration
- Keep the court informed as to address changes of either the guardian or the incapacitated person
- Inform the court upon the death of the incapacitated person or where death is likely
How Does One Become a Guardian in Massachusetts?
The first step to becoming a guardian in Massachusetts is to file a petitioner in a Massachusetts Probate and Family Court to become a guardian for an incapacitated person.
The Petition for Appointment of Guardian for an Incapacitated Person
Respondent’s Information
The person whom you are seeking to demonstrate requires assistance is known as the respondent, and their personal information will be entered into this section.
Petitioner’s Information
The petitioner is the person seeking guardianship in Massachusetts. The petitioner will enter demographic and other information about themselves and (if applicable) any co-petitioner.
Petitioner’s Request
This section of the petition for guardianship outlines for the court what you would like the court to do, for example:
- Appoint the person named in the petitioner for guardianship as guardian
- Request an appointment by the court of a guardian
- Request a named person (other than the person named as the petitioner) as the guardian
Priority of Appointment
Since there may be competing persons seeking appointment, or at least the potential for a competitor, the court will want to know why you think that either you or another named person in the petition should be appointed as guardian. Some reasons for this priority of appointment include, but are not limited to:
- Being the respondent’s durable power of attorney nominee
- Being the respondent’s spouse or spousal nominee
- Being the respondent’s parent or parental nominee
Selection of Type of Guardianship
When completing this portion of the guardianship petition, the petitioner will indicate whether the appointment is to be for a limited guardian or general guardian.
Limited Guardian
Some powers that the Massachusetts Probate and Family Court may grant to a petitioner include:
- The ability to apply for health insurance on behalf of the Respondent
- The ability to request copies of bank statements or statements of other financial institutions, insurance company records
- Any other decision that may be relevant to the client’s circumstances (if approved by the court)
General Guardian
For a general guardianship to be approved in Massachusetts, the petitioner will need to state the reason by a limited guardianship is not appropriate. In other words, by ruling out the limited guardianship because, for example, the Respondent is simply unable to make any decisions affecting their own health, safety or self-care.
Medical Certificate or Clinical Team Report
If the Respondent is intellectually disabled, a Clinical Team Report must be filed with the court. If the Respondent is otherwise disabled, a medical certificate is required with the petition.
NOTE: There are instances where it is not possible to file a medical certificate or clinical team report timely or at all. Under such circumstances we will file a motion on your behalf, along with an affidavit, explaining why it is necessary that these documents be filed late or not at all.
Interested Parties
A detailed list of the Respondent’s Spouse, Children, current or nominated guardian or conservator, health care agent, durable power of attorney/agent, representative payee and caretaker (in last 60 days) must be provided to the court. Copies of relevant appointments or other role-assigning documents must be attached to the petition for guardianship.
Assets and Income
A listing of all assets and income is included in the petition for guardianship, minus any account numbers of bank/institution names.
Special Authorization Requests
There are times when a petitioner is requesting special permission to admit the Respondent to a nursing home or facility, or wishes to administer antipsychotic medication as part of an overall treatment regimen, or wishes to substitute their own judgement regarding a specific treatment or action, or to revoke the health care proxy previously named by the Respondent.
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