Guardianships in Massachusetts FAQ

What is a Guardianship?

A guardianship is a legal process that gives permission to a person named the “guardian” to make decisions and take care of a incapacitated person.

What Are the Two Basic Types of Guardianships?

A plenary guardianship, also known as a complete guardianship, can be put in place if an incapacitated is not able to make any decisions for themselves.

A limited guardianship is used when the incapacitated person can still make responsible decisions in certain areas of their lives but not in others. A limited guardianship would only give the guardian decision making powers over the areas where the incapacitated person is unable to make responsible decisions.

What is a Temporary Guardianship and When is It Necessary?

A temporary guardianship is a legal process that gives permission to a person to make decisions for an incapacitated individual; the difference between a temporary guardianship and plenary guardianship is that the temporary guardianship only lasts for 90 days. A temporary guardianship is necessary if it is likely that there will be immediate and substantial harm to the incapacitated person’s health, safety, or welfare. The powers of the temporary guardian may also be limited depending on the condition of the incapacitated person. The court will specifically outline and order what the responsibilities of the guardian will be. The temporary would go back to court if they wished to extend the temporary guardianship until a permanent (plenary) guardianship can be established.

Who Qualifies for a Guardianship?

The individuals who are subject to guardianships are known as the respondent and is considered an “incapacitated person”. A incapacitated person is someone who is clinically diagnosed with a condition that renders them unable to make or communicate decisions about their physical health, safety, or care.

Who is the Petitioner and Who is the Respondent?

The petitioner is the individual who makes the request to the court to create a guardianship. The petitioner can be anyone interested in maintaining the wellbeing of the incapacitated person including a physician, hospital, facility, state agency, friend, neighbor, or family member. The petitioner informs the court about the incapacitated person’s condition and needs.

The respondent is the incapacitated individual that the petitioner thinks needs a guardianship, this can be an intellectually disabled person, a person with a mental illness or an individual with a special circumstance that makes a guardianship necessary.

Where Do I File My Petition to Establish a Guardianship?

The request to establish a guardianship, also known as a petition, is filed with the Family and Probate Court in the Massachusetts county in which the incapacitated person resides.

What Are the Rights of the Respondent?

The respondent has many rights in the guardianship process. The respondent has the right to have a lawyer, and if they cannot afford a lawyer, the court will appoint one to represent the respondent. They have the right to know that a petition to establish a guardianship has been filed, this includes the date, time and location of the court hearing. They also have the right to be at the hearing, unless there is are important reasons that they cannot go. They have the right to object to having a guardian appointed, and can present evidence and cross-examine witnesses. Finally, the respondent has the right to object to the person who is being named guardian or monitor.

What Are Guardians NOT Allowed To Do?

The Guardian cannot remove a Health Care Proxy, spend or give out the incapacitated person’s assets or income and the guardian is NOT personally responsible for the incapacitated person’s expenses.

Who CANNOT Become a Guardian?

The court will not appoint an individual who is under investigation. They won’t appoint an individual if they have pending charges for committing an assault and battery that seriously injured the incapacitated person, or if they are currently being investigated for neglecting the incapacitated person.

What is a Rogers Guardianship, and When is it Applicable?

A Rogers guardianship is a special form of guardianships that is used for incapacitated people who have a mental illness that is considered “extraordinary”. This can include an illness that requires antipsychotic medication or an illness that requires more intrusive procedures and treatments, including sterilization or electroconvulsive therapy. If an individual wishes to establish a Rogers guardianship they must request a Rogers guardianship hearing and ask the court to approve of the extraordinary medical treatment for the incapacitated person. The court must decide before granting the Rogers guardianship that (1) the person subject to the guardianship is incapacitated and not competent to give informed consent about being treated with antipsychotic medication, and (2) whether the person would choose to take antipsychotic medication if they were competent.

What is a Guardian Ad Litem?

A guardian ad litem is a court-appointed, independent professional, generally a lawyer, that investigates and writes a report to determine what the best care plan is for a child. The guardian ad litem is not allowed to advocate on the child’s behalf, they are only providing objective assessments.