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Guardianship and Conservatorship

If a person lacks sufficient mental capacity to make health care decisions and personal, non-financial decisions, a Guardianship is needed if the incapacitated person had not executed a valid Health Care Proxy. Guardianship is a lengthy, multi-tiered Probate Court proceeding which does not include financial issues.  Financial decisions are dealt with in Probate Court through a similar proceeding known as Conservatorship.Both Guardianship and Conservatorship are not one-size-fits-all, but rather are tailored by the Probate Court to meet the specific needs of the incapacitated person, as detailed in the required medical certificate of a registered physician, licensed psychologist or certified psychiatric nurse clinical specialist.  Legal notice of any Guardianship or Conservatorship proceeding must be given to any “interested person,” who can then choose to participate in the proceedings. (See Is the Term “Interested Person” Meant to Be Broadly Defined under Massachusetts Guardianship and Conservatorship Law?)

Financial issues for an incapacitated person can be covered without Conservatorship if the person executed a durable power of attorney, which may be the most important document for any adult to have in place. Conservatorship can be expensive because a surety bond is required, and because annual accountings must be filed, which include filing fees and the appointment of a lawyer known as a Guardian Ad Litem to review the accountings. (See What Can Happen If You Become Mentally Incapacitated in Massachusetts But Have Not Executed a Durable Power of Attorney?)  A durable power of attorney needs to be detailed because it is only as good as the respect it receives from financial and legal institutions.  Why Is It Important that a Massachusetts Power of Attorney Be “Durable” and Detailed?  Note that any durable power of attorney executed before July 1, 2009 or any durable power of attorney which makes reference to Massachusetts General Laws Chapter 201B, which was repealed, may be treated as invalid.  Is Your Massachusetts Durable Power of Attorney Still Valid?

Under the doctrine of substituted judgment, the preferences of the incapacitated person are supposed to be followed by a Guardian or Conservator as much as possible. In 2007-2009, Attorney Barreira served as an expert witness in testifying against two lawyers in a major Barnstable County case where substituted judgment was a major issue in determining the unreasonableness of their legal and temporary guardian’s fees.  Massachusetts Probate Court Judge Orders 2 Lawyers to Pay $328,770.97