Conservatorship & Guardianship

Massachusetts Conservatorship and Guardianship Attorney

If someone loses the capacity to make health care and financial decisions, and that individual has failed to previously establish careful advance directives (including but not limited to health care proxy and durable power of attorney), then his or her loved ones must resort to the probate courts to seek a conservatorship and guardianship.

Guardianship

A guardianship is a probate court proceeding in which someone petitions the court to be appointed guardian over someone else (that person is called the "Protected Person"). The guardian would have the authority to make health care decisions for the protected person. A probate court will not treat this petition lightly – in Massachusetts all adults are presumed to have capacity to make their own health care decisions. Because of the complexity of the law and the nature of the petition, a guardianship petition can take weeks or months to pass successfully through the courts.

A guardianship proceeding is by its nature a very public proceeding. Many people do not want their private business divulged in the public courts of MA. It is also a very expensive proceeding because it involves filing fees, attorney's fees, publishing fees, constable fees, etc.

Once the court appoints a guardian over a protected person, the guardian's authority is limited. If the guardian wishes, for instance, to authorize anti-psychotic drugs for the protected person, the guardian must seek additional special authority from the court. That requires further cost, time, stress and uncertainty.

In addition, a guardian must regularly report to the court in writing for the duration of the guardianship, which is often the full lifetime of the protected person.

Because of the considerable time and expense involved with guardianship, most people – if given the opportunity – would avoid guardianship altogether by working with a Qualified Elder Law Attorney to prepare advance directives long before anyone loses the capacity to make their own decisions.

Conservatorship

A conservatorship is a probate court proceeding in which someone petitions the court to be appointed conservator over someone else (that person is called the "protected person"). The conservator would have the authority to make financial decisions for the protected person. A probate court will not treat this petition lightly – in Massachusetts all adults are presumed to have capacity to make their own financial decisions. Because of the complexity of the law and the nature of the petition, a conservatorship petition can take weeks or months to pass successfully through the courts.

A conservatorship proceeding is by its nature a very public proceeding. Many people do not want their private financial business divulged in the public courts of MA. It is also a very expensive proceeding because it involves filing fees, attorney's fees, publishing fees, Guardian ad Litem fees, constable fees, etc.

Once the court appoints a conservator over a protected person, the conservator's authority is limited. For example, if the protected person requires nursing home care, all of his or her assets are countable during the Medicaid/MassHealth process. If the conservator wishes to preserve and protect those assets for the benefit of the spouse at home, the conservator must petition the court for special authority. That requires further cost, time, stress and uncertainty. When appearing before a judge, one can never know whether that judge would agree that the protected person should be able to protect his or her assets – there is always the risk that the judge might feel those assets should be spent down entirely on nursing home costs – even if that is against the wishes of the protected person.

In addition, a conservator must regularly report to the court in writing for the duration of the conservatorship, which is often the full lifetime of the protected person. Each report costs more money and takes more time.

Because of the considerable time and expense involved with conservatorship, and because of the great risk to asset protection goals, most people – if given the opportunity – would avoid conservatorship altogether by working with a Qualified Elder Law Attorney to prepare advance directives long before anyone loses the capacity to make their own decisions.

Ultimately, however, a simple durable power of attorney is often insufficient to achieve the asset protection goals of the individual. That POA must contain specific and highly specialized language to ensure that their appointed agent and take advantage of every possible strategy to preserve and protect assets if the individual becomes incapacitated. Most POA's fall far short of that standard so you must ensure that you work with a Qualified Elder Law Attorney who practices everyday in the areas of asset protection and Medicaid/MassHealth and who knows exactly what authority must be listed in the POA.

Contact a lawyer at Curley Law Firm LLP today by calling toll-free (866) 406-8582 or contacting us through our Intake Form.