Determining whether a Guardianship is the appropriate next step is a tough decision. An adult guardianship is necessary when someone over the age of 18 has a clinically diagnosed medical condition and is unable to make or communicate effective decisions about their health, safety and well-being. In some cases, a Limited Guardianship may be appropriate when the person is able to make some choices on their own. Generally, once a person has become incapacitated, they cannot appoint a Health Care Agent. Therefore, if someone was not selected prior to the incapacity, then the Massachusetts court can appoint a Guardian to make some or all personal decisions on the adult’s behalf involving health care decisions and, in some cases, a person’s funds if the funds are minimal. A Guardian is required to consider the adult’s expressed desires and personal values in decision-making, encourage the adult to participate in decision-making whenever possible, and help the adult develop or regain the capacity to manage his or her own personal affairs. Further, a Guardianship can be temporary or permanent.
Sometimes the original Guardianship needs to be expanded to include the authority to administer antipsychotic medication, authorize a Do Not Resuscitate order, or to assist with obtaining MassHealth benefits. This is a separate process and requires specific documents to effectuate the change.
If there is a substantial amount of money or assets, then a Conservator may need to be appointed if an adult is unable to manage his or her money, property, or business affairs due to a disability, and the adult has not previously appointed a person to make financial decisions on his or her behalf (Power of Attorney). It is important that the adult’s assets are not wasted or dissipated and possibly used for the person’s care. A Conservator may also be limited and may be temporary or permanent.
These appointments can also be necessary when it comes to minors. Although a Conservator is not common for minors, a Guardianship can be brought forth when a child needs someone to make decisions for him or her because of the restriction of their age. Guardians may be family members or other third parties who have the best interests of the child in mind. This also can become necessary when the parents are unable or unwilling to care for the child. That being said, a Guardianship is not always necessary when all the parties agree to a non-parent having custody. In those cases, a Care-Giver Affidavit may suffice.
The process for all of these options begins with a petition, a filing fee, and a Medical Certificate completed by a treating physician first and foremost. There may be additional procedures depending on the urgency of an appointment, as well as additional documentation needed prior to securing a Guardian or Conservator. There are also administrative responsibilities for both appointments. It can be confusing and having an attorney assist you can make the process smoother and more efficient. Contact my office today to see how I can help you coordinate the necessary steps.