Q: When is a guardianship appropriate?
A: Courts in Massachusetts appoint a guardian for a person who suffers from a clinically diagnosed condition that impairs the person’s ability to make or communicate decisions to such an extent that the individual lacks the ability to attend to his or her own physical health, safety or self-care, even with appropriate technological assistance. The Court may appoint a guardian to protect the incapacitated person’s welfare.
Court will not appoint a guardian for a person who merely shows poor judgment or difficulty in making decisions. If the incapacitated person has significant assets, a conservatorship may also be appropriate and required.
Q: Can a guardian make medical decisions for the incapacitated person?
A: Guardians have the authority to make general medical decisions for the incapacitated person. Guardians may generally consent to routine, non-invasive, non-experimental treatments for the incapacitated person.
Guardians must seek specific authority from the Court to administer antipsychotic medication to the incapacitated person or for other extraordinary medical authority. A guardian is obligated to act in the best interests of the incapacitated person.
The power to commit the incapacitated person to a mental health or mental retardation facility requires special court proceedings in the district court.
Q: Who can b a guardian?
A: A petitioner must complete and file numerous court documents and appear at a hearing to be appointed as guardian. A petition for guardianship must be filed by anyone seeking guardianship.
A petition for guardianship must be accompanied by a medical certificate. In a case where the incapacitated is has an intellectual disability, a clinical team report is required rather a medical certificate.
A medical certificate must be signed by a physician, psychologist or psychiatric nurse. A clinical team report must be signed by a physician, psychologist and social worker. A medical certificate is valid for 30 days from the date oft examination. A clinical team report is valid for six months from the date of examination.
A Court must be satisfied that the incapacitated person is, in fact, incapacitated and that the proposed person is suitable to serve as the incapacitated person’s guardian.
Q: Where should a guardianship petition be filed?
A: A guardianship petition must be filed in the Probate and Family Court in the Massachusetts County where the incapacitated person lives.
Q: How much does it cost to petition for guardianship?
A: There is no filing fee for a guardianship petition. The petitioner must pay for the cost of providing notice to all interested parties. This sometimes requires service by publication in a newspaper selected by the Court. There is a filing fee for a bond with sureties and a fee for Letters of Appointment.
Q: Does the guardian need to notify anyone of the petition?
A: The guardian must comply with all court instructions to properly notify interested parties. The incapacitated person must receive in-hand notice. In addition the following parties must receive proper notice, as required by the Court.
- the Massachusetts Department of Developmental Services
- the Veterans Administration
- the incapacitated person’s heirs, including the incapacitated person’s spouse or children, as determined by law
The Court will issue specific instructions called a citation, that may require certified mail, as well as publication of a notice in a particular newspaper, at additional cost.
Q: Does the court appoint a lawyer to represent the incapacitated person?
A: The Court has the power to appoint a lawyer to represent the incapacitated person if he or she, or anyone on his behalf makes such a request. In the event that a guardian seeks authority to administer antipsychotic drugs, or for extraordinary medical authority, or for admission to a nursing home, the Court will appoint counsel to represent the incapacitated person.
Q: When do a guardian’s responsibilities end?
A: A temporary guardianship last ninety days. A permanent guardianship typically end when the incapacitated person dies or upon further order of the Court. A guardian may resign with permission of the Court. The Court may remove a guardian at the request of another person or on its own initiative, if the guardian is unsuitable or incapable.
Should you be seeking guardianship of a loved one, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.