What is a guardian?

A guardian is a legal appointment, made by a Probate and Family Court in Massachusetts for the purpose of assigning a person to do, at a minimum, all 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

Depending upon the circumstances, additional duties may be allocated to the guardian, for example:

• Guardian Care Plan Report
  Some guardians will be required to file with the court a care plan report within 60 days of being appointed as a permanent guardian. This same report, for this type of guardian, will be due annually on the anniversary date of the appointment of the guardian by the Probate and Family Court.
  NOTE: Failing to comply with the initial or annual filing of the Guardian Care Plan Report, may result that guardian being called into court for a hearing to explain.

• Termination as Guardian
  Where the incapacitated person has improved such that they are no longer incapacitated, the guardian must file a petition to the court to terminate guardianship along with a medical certificate completed by a health care professional indicating that the incapacitated person is no longer incapacitated.
  
  
• Guardian Resignation

If a guardian wishes to resign from guardianship in Massachusetts, a petition must be filed with the Probate and Family Court to that effect.

• Authority Changes

There are times when expansion of the authority originally decreed to the guardian is necessary due to changes in the health of the incapacitated person. At such times the guardian must petition a Massachusetts Probate and Family Court to expand authority.

• Placement in a Nursing Facility

A petition must be placed before the Probate and Family Court in Massachusetts in cases where the incapacitated person needs to be placed in a nursing facility.

Types of Guardians in Massachusetts

There are two types of guardianships in Massachusetts: plenary guardianship or limited guardianship. The first type of guardian is the plenary guardianship where the guardian makes all decisions for a person who is unable to make such decisions for themselves. The other type of guardian in Massachusetts is a limited guardianship, which is limited in the sense that the guardian can only make certain decisions for an incapacitated person where those decisions are approved by a court.

What is a Guardian Not Allowed to Do?

A guardian cannot disable a health care proxy, spend the assets or income of an incapacitated person, or assume the debt of an incapacitated person.

Notice to Interested Parties

Massachusetts law requires that appropriate notice to interested parties named in the petition for guardianship be made within 14 days before the hearing date by a disinterested person delivering a copy of the petition and citation (Notice and Order). In addition, notice must be given to the US Veteran’s Administration and the Department of Developmental Services (if intellectual disability in the incapacitated person).

At times notice becomes difficult. When this occurs, your attorney will publish the notice in a newspaper chosen by the Probate and Family Court. Depending upon the financial circumstances of the petitioner for guardianship in Massachusetts, it may be possible to have fees waived for this process. The original Notice of Hearing and Certificate of Service and a signed, completed Return of Service must also be filed with the court.

Objections Resulting from Notices

It is possible that one of the interested parties to which you have provided notice will object to your appointment as guardian of the incapacitated person. When a person objects to the petition of guardianship, a hearing will be scheduled to address the concerns of the objecting individual. You should have your attorney present at such a hearing to ensure the most favorable outcome for your situation.

Contact our offices today to receive assistance and representation in completing a guardianship in Massachusetts.

DISCLAIMER: The information provided in the pages and posts of this website are for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by the use of this site.