Massachusetts Guardianships

Worcester Elder Law Attorney · Boston Estate Planning

Guardianships
One of the most unsettling aspects of aging to an elderly person is the possibility that they could lose decision-making ability or be unable to care for themselves.  This situation could also be devastating to the senior’s loved ones, but if it does happen—perhaps through dementia or Alzheimer’s—a qualified and caring attorney can help the family maintain the elderly person’s dignity as well as protect his or her rights and assets.

What is a guardianship? Why would one be necessary?
In Massachusetts, if a person becomes incapacitated due to physical or psychiatric reasons, they need someone else to make financial and health related decisions on their behalf. This person, assigned by the court, is known as the guardian. The person who qualifies for the guardianship is known as the incapacitated person.

Types of Guardianships

• Plenary (full) guardianships are necessary when the incapacitated person needs complete care for all matters of health, safety, and well-being.    
• Limited guardianships are custom-tailored by the court to assist those with limited incapacities in order to allow them personal decision-making to the fullest extent possible.  

Guardianships vs. Conservatorships

• Guardians are appointed by the court to protect people who have had a clinically diagnosed condition that prevents them from being able to make personal and medical decisions for themselves.  
• Conservators protect the property and financial assets of an incapacitated person.

Note: The guardian and conservator can be the same individual for the incapacitated person, but separate petitions must be filed with the court. Once assigned, the court continuously monitors the guardianship and the well-being of the incapacitated person. 

The Guardian’s Responsibilities
A guardian is expected to provide:

• Basic needs
• The least restrictive living situation possible
• Standard medical treatment and visits to the doctor
• Health insurance application and benefit follow-through
• Payment of the incapacitated person’s expenses with the incapacitated person’s income
• Recreational and educational needs

Only with court permission, guardians are allowed to:

• Admit the incapacitated person to a nursing home, mental health, or disability facility
• Change his or her own decision-making power
• Allow anti-psychotic drugs to be given to the incapacitated person
• Revoke a Health Care Proxy
• Allow for medical treatments that are considered “extraordinary”
• Resign or terminate the guardianship while the incapacitated person is alive

Alternatives to Guardianships

Planning ahead is key
 
With a proper life-plan, guardianship situations can often be avoided. Massachusetts Elder Law Attorney Paula Smith advises her elderly clients to explore:

• A Health Care Proxy—This is a legal document that enlists a trusted person as a Health Care Agent, and that person will communicate the incapacitated person’s health care wishes and decisions for them.
• A Living Will—This document, although not legally binding in Massachusetts, is helpful for families because it lists instructions for life-sustaining treatment as well as all other instructions for medical care. From administering CPR to artificial hydration, it avoids confusion at a time of emotional upheaval.
• Power of Attorney—Durable Power of Attorney allows an attorney the ability to direct funds for the incapacitated person’s medical care, as well as to manage all finances, if necessary. 
  

Paula Smith’s elderly clients and their families know that proper estate planning not only protects assets but provides an immeasurable comfort factor for all involved. This is, in part, because a guardianship situation can often be completely avoided by taking the proper steps now.  

Additional resources on Guardianships in the Commonwealth can be found at the Massachusetts Guardianship Association (MGA).

Contact Paula Smith
For more information about guardianships, health care proxies, estate planning, VA planning, probate administration, or for general questions about elder law, please contact Paula Smith to discuss your Massachusetts elder law attorney needs.