Guardianship and Conservatorship
GUARDIANSHIP and CONSERVATORSHIP
Legal definition of mental capacity
There is a legal threshold that a person needs to meet in order to have sufficient mental capacity to manage their own finances and make their own health care decisions. If a person is judged to have become mentally incapacitated, the Court may decide it is necessary to appoint a Guardian and/or Conservator.
Definition of Guardianship
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.
Definition of Conservatorship
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.
Who determines whether or not a person needs a Guardian or Conservator?
In order to start a guardianship and/or conservatorship, it is necessary to petition the court. A medical certificate of a registered physician, licensed psychologist, certified psychiatric nurse clinical specialist or nurse practitioner must be filed with the petition in order to show the need for Guardianship or Conservatorship.
Legal notice of any Guardianship or Conservatorship proceeding must be given to any “interested person,” who can then choose to participate in the proceedings. The court may determine who is an interested party based on the individual facts of the case.
Alternative to Guardianship
A Health Care Proxy is a document in which you can designate who will make medical decisions for you if you are unconscious or mentally impaired, either temporarily or long-term. The document can contain a written expression of your preferences for end-of-life care and can usually help to avoid the arduous, expensive and time-consuming process of guardianship proceedings in Probate Court.
For more information on the use of a Health Care Proxy and end of life issues, see:
- “Executing a Health Care Proxy Under Massachusetts Law”
- “Basic Issues about Hospice Care”
- “Deathbed Estate and Tax Planning”
Alternative to Conservatorship
Conservatorship can be expensive because it requires a surety bond (a written agreement where the conservator formally agrees to act legally and in the best interest of the incapacitated person, and often involves an annual premium), and because annual accountings must be filed and then reviewed by a Guardian Ad Litem appointed by the court, requiring filing fees and fees for the Guardian Ad Litem. Another issue is that of control. The preferences of the incapacitated person are supposed to be followed by a Guardian or Conservator as much as possible under what is called the “doctrine of substituted judgment,” but that is not always done. 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.
Executing a durable power of attorney can help cover financial issues for an incapacitated person without Conservatorship. A durable power of attorney may be the most important document for any adult to have in place.
For information about a Guardianship/Conservatorship that went off the rails, read Attorney Barreira’s blog post below:
For questions related to Guardianship and Conservatorship, please use the Contact Form below or call the office of Brian E. Barreira at 508-747-8282 to schedule a personal appointment and, if travel is a problem for you, he can conduct a Zoom meeting with you.