When a parent with dementia can no longer make safe decisions, a young adult with an intellectual disability is about to turn 18, or a family member has a serious brain injury or mental illness, a guardianship may be needed. A guardian is a person appointed by the Probate and Family Court to make personal and health care decisions for an adult who can’t make them safely. This guide explains when guardianship is available, how the petition works, and what a guardian can and can’t do.
When is guardianship available?
Under the Massachusetts Uniform Probate Code, a guardian may be appointed for an “incapacitated person”: someone who, for reasons other than advanced age or minority, has a clinically diagnosed condition that leaves them unable to receive and evaluate information or make or communicate decisions, to the point that they can’t meet essential requirements for their physical health, safety or self-care, even with appropriate technological assistance (G.L. c. 190B, § 5-101(9)).
Common situations include dementia and other degenerative conditions, traumatic brain injury, serious mental illness, and intellectual disability. A separate procedure, using a clinical team report, applies when the person has an intellectual disability.
Guardianship is a significant loss of rights, and the court treats it that way. The court must find that the person’s needs can’t be met by less restrictive means (§ 5-306), such as a health care proxy, durable power of attorney or supported decision-making. If a valid health care proxy or power of attorney is already in place, a guardianship may not be needed at all.
Guardian or conservator?
A guardian handles personal and health care decisions: where the person lives, medical treatment, services and day-to-day care. Managing money and property is a separate role, called a conservator, which requires its own petition and findings. The same person can serve as both, but a guardian alone doesn’t have authority over the person’s finances.
Limited or general guardianship
The court is required to encourage maximum self-reliance and independence and to give a guardian only the authority the person’s limitations require. A limited guardianship gives the guardian specific powers, such as consenting to medical treatment, applying for benefits, or obtaining records, while the person keeps the rest. A general guardianship gives broader authority, and the petition must explain why a limited guardianship isn’t enough.
The petition
The process starts with a petition in the Probate and Family Court in the county where the person lives. The petition (§ 5-303) includes:
- Information about the respondent, the person alleged to be incapacitated, and the petitioner
- Who should be appointed, and why they have priority. Under § 5-305, the court gives priority to a person the respondent nominated, including in a durable power of attorney, then to a spouse, then to a parent, but it can pass over anyone if that’s in the person’s best interest.
- Whether a limited or general guardianship is requested, and the specific powers sought
- A list of interested persons, such as the spouse, adult children, any existing health care agent, attorney-in-fact, representative payee or recent caregiver, with copies of any proxy or power of attorney
- A general statement of the person’s assets and income
- Any requests for special authority, described below
Medical certificate or clinical team report
The petition must be supported by a medical certificate dated within 30 days of filing, or, for a person with an intellectual disability, a clinical team report dated within 180 days of filing. At the hearing, the medical examination must have taken place within 30 days before the hearing. If it’s impossible to get one, for example because the person refuses to be examined, the petitioner can file an affidavit explaining why and ask the court to waive or postpone the requirement.
Notice, objections and the hearing
The respondent and the interested persons must be given notice of the petition and hearing date, following the court’s citation. Notice also goes to the Department of Veterans Affairs if the person receives VA benefits, and to the Department of Developmental Services in intellectual disability cases. The respondent has the right to a lawyer, and anyone interested can object. A contested petition is heard by a judge, and having a lawyer at that hearing matters.
Emergencies
If waiting for the regular process would likely cause immediate and substantial harm, the court can appoint a temporary guardian with limited powers while the petition is pending (§ 5-308). The motion must describe the harm and the specific actions needed.
Who can serve?
Any suitable adult can be appointed. The court won’t appoint someone whose interests conflict with the person’s, and it looks closely at anyone with a history of abuse or neglect of the person, or pending charges involving them.
What a guardian can’t do without court approval
- Revoke a health care proxy. A guardian can’t revoke the person’s health care proxy without the court’s authorization, and while a proxy is in effect, the health care agent’s decisions take precedence over the guardian’s (§ 5-309(e)).
- Admit the person to a nursing facility. This requires a specific finding by the court that admission is in the person’s best interest, except for certain short-term admissions of up to 60 days that follow strict notice rules.
- Consent to extraordinary treatment, such as antipsychotic medication, which requires a court “substituted judgment” determination and an approved treatment plan (§ 5-306A).
- Commit the person to a mental health facility. A guardian can’t be given that authority.
A guardian’s ongoing duties
- Act in the person’s best interest, taking their values and wishes into account, and involve them in decisions as much as possible
- File a report with the court within 60 days after appointment and at least annually after that, describing the person’s condition, living arrangements, services and the guardian’s visits
- Keep the court informed of address changes and of the person’s death
- Petition the court to expand or limit authority if the person’s condition changes, to resign, or to end the guardianship if the person regains capacity, supported by a medical certificate
Help from someone who knows health care
Guardianship petitions involve a lot of paperwork, strict timing for medical evidence, and decisions that affect someone’s daily life and medical care. Attorney Gaudet is a registered respiratory therapist and a registered nurse who has worked in critical care and intensive care in an acute care hospital, and understands the medical side of these cases from the inside. Call 978-273-8337 or contact our office to talk through whether guardianship is right for your family member.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises families on guardianship, conservatorship and family law matters. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
Related Practice Area
Massachusetts Family Law →