Guardianship, Conservatorship and Alternatives

Guardianship of an adult is a legal proceeding, where the court can appoint a guardian for an incapacitated person, who has a clinically diagnosed condition causing an inability or incapacity to receive and evaluate information or make or communicate decisions to the extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.  G. L. c. 190B, § 5-101 (9).

In a court hearing, the court grants certain authority to the guardian to make health care and personal decisions on the adults’ behalf, including decisions about housing and a person's well-being, coordinates needed support and assistance, and advocates for the adult’s autonomy.

Guardianship is a highly protective intervention, but it can be quite restrictive on an adult’s personal liberties. It’s important to assess a person’s decision-making abilities and explore supports and alternatives before considering a guardianship. For many adults it may be very possible to avoid or limit a guardianship with needed supports and accommodations.

Read more about guardianship here.

An incapacitated person is defined in Massachusetts law as an  individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability or incapacity to receive and evaluate information or to make or communicate decisions, to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance. G. L. c. 190B, § 5-101 (9)

In a guardianship hearing, the incapacitated person is at risk of losing their independence and decision-making powers. The incapacitated person, called the respondent in a court hearing, has some important protections under the law to ensure fair treatment. Those rights include:

• The right to have an attorney. If the person can not afford an attorney, one will be appointed by the court;
• The right to have notice of the hearing and be present at the hearing;
• The right to object to who wants to be named as a guardian or to the appointment of a guardian;
• The right to present evidence and witnesses and cross examine witnesses.

A guardian is a person or an entity who is appointed by the court to make health care and personal decisions on behalf of an incapacitated person. Guardians can be family members, friends or others who know the incapacitated person. Guardians can also be professionals, like attorneys or health care providers, or an entity such as a hospital, a facility or state agency. The person/ entity typically files a petition to request to be appointed as guardian.

Before becoming a guardian it’s important to consider the type of guardianship that best fits the circumstances and is least restrictive for the incapacitated person. Read more on who can be a guardian here.

When petitioning the court to become a guardian it’s important to first decide what type guardianship is best for the incapacitated person. Here’s a brief summary of the common types of guardianships to consider-

Limited

A Limited Guardianship is preferred under Massachusetts law.  In the court hearing, a limited guardianship will be constructed based on what decision making ability  the person can retain or keep to maximize their independence, and what limited powers the guardian will have to support the person in areas where they do not have decision-making ability require  assistance. The court will issue a court order or decree that outlines the guardian’s decision-making powers. See examples of specific rights a person may be able to retain here.

Plenary

In a Plenary or Full Guardianship, the court authorizes the guardian to make most or all ordinary health care and personal decisions for the incapacitated person.

Temporary  

A temporary guardianship is intended for an emergency situation or to provide a guardian with limited authority to address an imminent harm, and is timed limited for up to 90 days. At that time, the temporary guardianship can be extended or a permanent guardianship be considered.

A Rogers Guardianship is a type of hearing where the guardian is requesting specific authority to administer antipsychotic medications or other intrusive medical treatments and procedures, for individuals who are unable to consent to treatment themselves.  The court must authorize a treatment plan and appoint a monitor to oversee the plan. Read more here.

Read more here about types of guardianships here.

Here’s a brief overview of what to expect in a guardianship hearing and some of the terms used in the process. There are many more important steps and forms to file with the court than listed below. If you are pursuing a guardianship, please read a fuller explanation on the mass.gov website.

Here’s how it works-

• The MA Probate and Family Court supervises an adult guardianship.
• A petition is usually filed by the person, called the petitioner, asking to be appointed guardian at the Probate and Family Court in the county in which the incapacitated person lives.
• The petitioner completes or obtains and files all the required forms with the court.
• The Medical Certificate or Clinical Team Report are included; there are specific steps to follow in this process.  Read more here.
• The incapacitated person, called the respondent, has some important protections under the law to ensure fair treatment during the hearing process, which include the right to have an attorney, the right to be given notice of the hearing, the right to object to the appointment of an guardian and the person who wants to be guardian, and the right  to present evidence and witnesses.
• Once the petitioner has completed all the necessary steps,  the court will schedule a hearing. Notice of the hearing must be given to the incapacitated person.
• At the hearing, the Court will determine whether to grant the guardianship and appoint the guardian. Before appointing a guardian, a court must find that the person's needs cannot be met by less restrictive means, including use of appropriate technological assistance. See the Checklist on this webpage .
• If the guardianship is granted, the court will issue a court order or decree which details  the specific authority and responsibilities of the guardian. Always look to the court order or decree to understand what a guardian can do and can not do.
• Guardians have may duties and responsibilities which include informing the court annually of progress, whether the adult has regained some or all capacity, to make a request to modify or terminate the guardianship or to seek extended authority hearings.

There are many steps to consider in the guardianship process. you can learn more here for a full explanation of the process.

• How to file a guardianship and links to forms
•  Volunteers Lawyers Project brochure.

A Guardian can make personal and ordinary personal and health care decisions, housing and educational decisions for an incapacitated adult only as necessary to protect the adult from harm, and according to the decision-making powers stated in the court’s decree and order. A Guardian’s duties and responsibilities can vary depending on the type of guardianship, but generally are as follows-

• Ensure proper care for everyday basic needs and safety, arrange for social, educational and recreational needs;
• Arrange for a safe and appropriate (least restrictive) living situation;
• Make ordinary or routine medical treatment and health care decisions;
• Encourage the adult to participate in decision-making whenever possible,
• Consider the adult’s expressed desires and personal values in decision making and their care planning documents.;
• Wherever possible, help the adult develop or regain the  ability or capacity to manage his or her own personal affairs.

See G. L. c. 190B, § 5-309

A Guardian can make personal and ordinary personal and health care decisions, housing and educational decisions for an incapacitated adult only as necessary to protect the adult from harm, and according to the decision-making powers stated in the court’s decree and order.

The guardian can not make extraordinary decisions about intrusive or advanced treatments without specific authority from the court. No guardian may do any of the following unless the Court has expressly authorized the guardian to do so:

• admit the adult to a nursing facility for more than 60 days;
• make medical decisions if there is a pre-existing health care proxy in place;
• revoke the adult’s pre-existing health care proxy;
• apply for health insurance benefits including MassHealth on behalf of the adult;
• obtain copies of statements or any other records from banks, insurance companies or other financial institutions verifying balances and transactions for accounts in the adult’s name, either alone or jointly with someone else;
• consent to treatment needing a substituted judgment such as
  • treatment with antipsychotic medication,
  • removal of artificial hydration or nutrition,
  • sterilization,
  • the entering of a Do Not Resuscitate/Do Not Intubate/Comfort Measures Only Order
  • execute a MOLST (Medical Orders for Life-Sustaining Treatment) or POLST (Portable Medical Order) for the adult.

See G. L. c. 190B, § 5-309

Under Massachusetts law, a guardian can not make extraordinary health  decisions involving intrusive or non-routine treatments without the court's expressed permission. Extraordinary health care decisions generally include long term admission to a nursing facility, antipsychotic medication treatment plan, sterilization, withholding life sustaining treatment and stopping kidney dialysis and more. These  treatment decisions require the court to apply a substituted judgment standard.  A substituted judgment standard is where the court puts themselves in the shoes of the incapacitated person to determine what treatment or decision the person would consent to if she or he were competent. The Court considers the following factors in making a determination:

• the person’s expressed preferences, including preferences documented in care planning documents that may include preferences about medications;
• the person’s religious beliefs and convictions;
• the impact of the decisions on the incapacitated person’s family;
• the negative or adverse side effects;
• the consequences and possible outcomes if treatment is refused;
• the prognosis and possible outcomes with the treatment.

The court weights these factors against the interests the state might have in implementing a treatment plan.  The court will authorize such treatment  when “it specifically finds using the substituted judgment standard that the person, if not incapacitated, would consent to such treatment and specifically approves and authorizes a treatment plan and endorses said plan in its order or decree”. Read more here.

Guardianship is a legal process with many steps to follow and forms to complete to ensure a fair hearing. A guardianship attorney can help with the process or a petitioner can represent themselves.  Here are some resources to help get started.

• General information
• The Guardianship Process and links to the forms
• The Guardianship Law