Guardianship and conservatorship both refer to a legal relationship between one person (the guardian or conservator) and another person (the incapacitated person) where the guardian/conservator has the ability and responsibility to make decisions on the other’s behalf. The primary difference between these two roles is the types of decisions that a guardian vs. a conservator is permitted to make — a guardian can make decisions about another’s individual decisions, including medical care, whereas a conservator can make legal decisions about property and finances.
While guardians and conservators often play a vital role in the care and well-being of older adults who are incapacitated and unable to make decisions on their own, court-appointed guardianships and conservatorships have some downsides, too. Consider the following about the disadvantages of guardianships and conservatorships and how to avoid both in Massachusetts–
What Are the Disadvantages of Guardianship and Conservatorship?
Again, guardians and conservators are often necessary and much-appreciated; there are situations where incapacitated adults are unable to care for themselves or make decisions on their own and, unfortunately, do not have anyone available to speak for them or assist them. But it’s important to remember that guardianship and conservatorship relationships are court-appointed, and therefore can be a time-consuming, expensive, and even contested legal process. What’s more, it may feel disempowering for an elderly person to have someone appointed by the court, rather than selected by the elderly person themselves. Fortunately, there is a way to avoid a court-appointed guardianship or conservatorship.
How to Avoid Guardianship and Conservatorship in Massachusetts
The best way to avoid guardianship and conservatorship in Massachusetts is simply to engage in thorough, intentional planning well before reaching the point of being incapacitated. Legal estate planning documents that help to ensure that a person has a say in their affairs, their medical care, their financial decisions, as well as who has the power to make decisions on their behalf include:
- Healthcare power of attorney. A healthcare power of attorney is a legal document that grants someone else — of your choice — the power to make decisions on your behalf related to your healthcare if a) these preferences are not otherwise stipulated in other legally valid documents (such as an advanced directive), and b) you are incapacitated and unable to make your decisions on your own. By appointing a healthcare power of attorney and having a discussion with this person about your wishes and preferences for healthcare, you can take comfort in knowing that you made a decision rather than having a court make a decision for you.
- Durable Power of Attorney is a financial power of attorney. Similar to a healthcare power of attorney is a financial power of attorney. Creating a financial power of attorney, where you name someone else to make financial decisions on your behalf should you become incapacitated and unable to make decisions on your own, replaces the need for a conservator.
- Advanced directive/living will. This should always be included in your Health Care Proxy. This advanced directive, also known as a living will, is an important estate planning documents. An advanced directive can be used to spell out your precise wishes for your healthcare and end-of-life care, including decisions about the use of feeding tubes and oxygen, whether or not you want to donate your organs, and more.
Call An Estate & Probate Attorney Today
To learn more about how to avoid guardianship and conservatorship in Massachusetts and the importance of creating a comprehensive estate plan, call Patricia Bloom-McDonald, Attorney at Law, directly today or send our law firm a message online at your convenience. Our Massachusetts estate planning and probate lawyer is here to help you plan for the future.