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. These permissions do not include financial decisions making in Massachusetts, for financial authority a conservatorship is needed.
What Are the Two Basic Types of Guardianships?
The first type of guardianship is known as a plenary guardianship, also called a complete guardianship, is utilized when an incapacitated individual is not able to make any decisions for themselves.
The second type of guardianship, known as a limited guardianship, is implemented 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 are the Basic Forms Needed to Establish a Guardianship?
In order for a guardianship to be established the court needs to see 4 forms. (1) Petition for Appointment of Guardian for an Incapacitated Person, (2) Clinical Team Report, (3) Medical Certificate for Guardianship or Conservatorship, and (4) Verified Motion for Appointment of a Temporary Guardian for an Incapacitated Person. For more information about what these forms are and how to fill them out visit our Applying for a Guardianship Page.
What is a Temporary Guardianship and When is It Necessary?
A temporary guardianship is a legal process that gives permission to an individual to make decisions for an incapacitated individual; the difference between temporary guardianship and plenary guardianship is that the temporary guardianship only lasts for 90 days. A temporary guardianship is necessary if it is probable that the incapacitated individual’s health, safety or wellbeing could be in immediate and substantial danger. The powers of the temporary guardian may also be limited depending on the incapacitated person’s condition. The court will specifically outline and order what the responsibilities of the guardian will be. The temporary guardian 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 the subjects under guardianships are known as the respondent and is considered an “incapacitated person”. A person is considered incapacitated when they have a medically diagnosed condition that prevents them from making or communicating decisions about their physical care, health, or safety.
Who is the Petitioner and Who is the Respondent?
The petitioner is the individual who makes the request to the probate court to create a guardianship. The petitioner can be anyone interested in maintaining the wellbeing of the incapacitated person including a physician, hospital, nursing home, state agency, friend, neighbor, or family member. The petitioner informs the court about the incapacitated person’s condition and needs to justify the need for a guardianship.
The respondent is the incapacitated individual that the petitioner believes needs the 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 the petition, is filed with the Family and Probate Court in the Massachusetts county in which the incapacitated person resides. Below you will find the addresses for all of the probate courts located in Massachusetts.
- Plymouth Probate and Family Court
- Barnstable Probate and Family Court
- Dukes Probate and Family Court
- Nantucket Probate and Family Court
- Bristol Probate and Family Court
- Brockton Probate and Family Court
- Norfolk Probate and Family Court
- Suffolk Probate and Family Court
- Essex Probate and Family Court
- Middlesex Probate and Family Court South – Woburn
- Middlesex Probate and Family Court North – Lowell
- Worcester Probate and Family Court
- Hampden Probate and Family Court
- Hampshire Probate and Family Court
- Franklin Probate and Family Court
- Berkshire Probate and Family Court
What Are the Rights of the Respondent?
The respondent has many rights in the guardianship process. The respondent has the right to obtain a lawyer, and if they cannot afford a lawyer, the court will appoint one to represent the incapacitated individual. The respondent has the right to know that a petition has been filed with the probate court to establish a guardianship, this includes information about the date, time and location of the court hearing. The incapacitated individual also has the right to be at the hearing, unless there are extenuating circumstances that make them incapable of being at the hearing. They have the right to object to the need for a guardianship, and can present evidence and cross-examine witnesses. Finally, the respondent has the right to object to the person who is being named as the guardian.
What Are Guardians NOT Allowed To Do?
The guardian cannot remove a validly executed Health Care Proxy. They cannot spend or transfer 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 probate and family courts in Massachusetts will not appoint an individual who is under investigation for any crime. They will not appoint an individual if that person has seriously injured the incapacitated person that brought about charges for committing an assault and battery. Or if the person is under investigation for neglecting the incapacitated individual.
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 in more extreme circumstances 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 that the court approve of the extraordinary medical treatment for the incapacitated person. The court must determine two factors before they can grant a Rogers guardianship. First, is the person under the guardianship incapacitated and not competent enough to communicate their informed consent for being treated with antipsychotic medication? Second, would the incapacitated individual choose to take those antipsychotic medications if they were deemed competent? The court uses what is known as substituted judgement to determine what treatment the incapacitated individual would choose if they were competent.
What is Substituted Judgement?
Substituted judgement is the method by which a judge determines what an incapacitated individual would make as their free-willed choice if they were competent. The court looks at many different aspects of the incapacitated individual’s life in order to make these determinations. For a Rogers guardianship the court will look at past preferences that have been expressed by the incapacitated individual regarding antipsychotic medication. They will also consider their religious beliefs, the effect the decision may have on the individual’s family, the likelihood of negative side-effects, and will compare and contrast the possible outcomes with and without treatment
What is a Guardian Ad Litem?
A guardian ad litem is a court-appointed, independent individual, generally a lawyer, that investigates or evaluates the care that is being provided or needs to be provided for the incapacitated individual and writes a report to determine what the best care plan would be for the incapacitated person. The guardian ad litem is not allowed to advocate on the incapacitated individual’s behalf, they are only providing objective assessments to inform the court of the current state of the individual.