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Guardianships and conservatorships are legal appointments by a Court whereby someone assumes responsibility for an individual who is unable to make decisions or to communicate effectively regarding their medical and/or financial matters. Both procedures can be used for minors or adults and are very similar in what they can accomplish.
Guardians fulfill roles that are similar to that of a responsible parent, making sure that the individual’s health and overall well-being are proper.
A Conservator is court-appointed for those individuals that require assistance managing financial matters or sees that funds are directed toward the person’s educational needs and general support.
These procedures need not necessarily be complicated but delays do occur. Courts are loathe to have these proceedings without an attorney. If you wish to become a guardian or conservator or have someone appointed for your loved one, contact estate planning lawyer Patricia Bloom-McDonald.
Guardians and Conservators are court-appointed for either adults or minors. Minors generally have their parents or close relative to care for them. The court must find that the person has a diagnosed medical condition that is incapacitating or at least renders the individual unable to make reasonable decisions about their medical issues. Guardians can be appointed for the following individuals with special needs:
Suffering from dementia or Alzheimer’s
A developmental disorder
Traumatic brain injury
Schizophrenia or other mental condition
Before a guardian can be appointed, there is a hearing in Court on a Petition for Guardianship where the issue of incapacity is considered as well as whether a guardian need be appointed. If an emergency situation exists whereby the individual is in danger of imminent and substantial harm, then a temporary guardian may be appointed for up to 90 days.
The individual has certain due process rights before the Court hearing is held in order to protect them and ensure that a guardianship is warranted under the circumstances. These include:
- Right to a Court hearing and to be present at that Court hearing.
- Right to an attorney — either the individual can request one or a person acting on the individual’s behalf. The court can also appoint an attorney on its own if it deems it necessary.
- The individual is given notice of the date, time and location of the Court hearing. Notice is also given to the individual’s heirs, spouse, domestic partner or anyone else the individual has lived with during the 60 days before the petition was filed.
- The individual has a right to object to the appointment of a guardian and to present evidence and cross-examine witnesses
In accordance with the current General Laws of the Commonwealth of Massachusetts, a document called a Health Care Proxy with Advanced Directives or a Durable Power of Attorney can eliminate the need for a Court hearing, but only if the individual has appointed a person or persons to act as his/her Conservator and/or Guardian when and if necessary in these documents.
Individuals requiring Court appointments generally do not have a properly prepared Health Care Proxy with Advanced Directives or a Durable Power of Attorney where an appointed individual can make material decisions about the adult’s important affairs. If a properly prepared Health Care Proxy with Advanced Directives or a Durable Power of Attorney does not exist, then a Court determines at a hearing that a Guardian or Conservator is appropriate, it will appoint a Guardian or a Conservator who will oversee the person’s care and make whatever arrangements are necessary for their needs and support. Some of the matters for which a Guardian or a Conservator has authority include:
Basic daily needs
Doctor’s appointments
Payment of bills and expenses for shelter or rent
Recreational and social needs
Applying for benefits
Receiving and depositing SSI, Social Security and other benefit checks
If the individual is able to participate at all in any of these decisions, then the Guardian or a Conservator has an obligation to encourage the individual to do so and to consider the individual’s wishes or desires, if reasonable. The Guardian or a Conservator should also explore what can be done for the person to regain the capacity to make these decisions, if the person possesses such capacity.
The Guardian or a Conservator is obligated to submit a Care/Plan/Report to the court. The initial one is due 60 days after the appointment and then annually or on the anniversary of the appointment.
Guardianships and Conservatorships are designed to protect the person, property, and assets of a disabled individual and to prevent any dissipation of the assets by managing it in the best interests of the Protected Person (individual who is the subject of the Guardianship or Conservatorship).
Westport estate planning lawyer Patricia Bloom-McDonald has been advising and representing clients involved in guardianships and conservatorship proceedings for decades. Her knowledge and experience in this area is vital for anyone seeking to help a loved one incapacitated by illness, age or injury. Contact her for all your estate planning needs.