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 a health care proxy and durable power of attorney), then his or her loved ones must resort to the probate courts to seek a conservatorship or guardianship. Advance directives must be signed while a person retains capacity.

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 the 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 Massachusetts. It is also a very expensive proceeding because it involves filing fees, attorney fees, publishing fees, constable fees, etc.

The Duties And Limitations Of A Guardian

Once the court appoints a guardian over a protected person, the guardian’s authority is limited. If the guardian wishes, for instance, to authorize antipsychotic 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 prefer to avoid guardianship altogether by working with a qualified elder law attorney and investing in preparing 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. Similar to a guardianship, a Massachusetts probate court will not treat this petition lightly. 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 Massachusetts. It is also a very expensive proceeding because it involves filing fees, attorney fees, publishing fees, guardian ad litem fees, constable fees, etc.

Limitations And Risks To Asset Protection

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 to the maximum extent possible (whether the protected person is married or not, valuable emergency asset protection strategies can be employed for this purpose) and to qualify for MassHealth, 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 will 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.

Alternatives To Conservatorship

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 (POA) is often insufficient to achieve the asset protection goals of the individual. That POA must contain specific and highly specialized language and authority to ensure that the appointed agent may take advantage of every possible strategy to preserve and protect assets if the individual becomes incapacitated. Most POAs fall far short of that standard, so you must ensure that you work with a qualified elder law attorney who practices every day in the areas of asset protection and Medicaid/MassHealth, and who knows exactly what authority must be listed in the POA to protect your home and savings.

Beware that some individuals may mistakenly think a POA is unnecessary because they own their house and accounts jointly with their spouse or children. However, if that individual loses capacity, the joint owner has no authority to change the deed or sell the house or refinance. The spouse or children have no authority over retirement accounts like IRAs or 401(k)s, even if they are named as beneficiary. Thus, it is vital that you plan for the future with a strong POA with strong asset protection features if asset protection is your goal.

Questions About Guardianship And Conservatorship In Massachusetts

If you are becoming concerned about a loved one’s ability to make their own decisions, you likely have many questions about the legal planning options available:

What is the difference between a guardian and a conservator, and when is each needed?

A guardian makes personal and health care decisions, while a conservator manages financial decisions.

• Guardianship: May be necessary when a person cannot make or communicate decisions about their medical care, living situation or personal safety.
• Conservatorship: May be necessary when a person cannot manage their finances, such as paying bills, managing investments or protecting assets.

Our Certified Elder Law Attorneys will listen to your concerns and help you decide which of these court actions, if any, is truly necessary to protect your loved one.

How is someone declared incapacitated, and what evidence is required?

A judge in the Massachusetts probate court is the only one who can declare a person incapacitated and only after a formal hearing. To begin the process, you must file a petition with the court.

The court requires critical evidence, most notably a medical certificate or clinical team report (CTR). A qualified professional, such as a physician, licensed psychologist, certified psychiatric nurse or nurse practitioner, must complete this document. It must describe:

• The person’s medical condition
• Their functional limitations
• Specific details on why they cannot make or communicate effective decisions about their health or finances

This is a high legal standard, and our lawyers can guide you in gathering the necessary documentation. The court often appoints an independent investigator, called a guardian ad litem (GAL), to review the case, interview the protected person and report back to the judge to make sure that all requirements are met.

What duties and reporting requirements do guardians and conservators have?

A guardian or conservator serves as a fiduciary, meaning they have a legal duty to act in the protected person’s best interest. Their authority is also limited by the court. For example, a guardian must seek special court authority to approve certain medical treatments or admit a protected person to a nursing home. A conservator must petition the court to engage in asset protection strategies, and there is no guarantee a judge will approve them.

Beyond these limitations, both must file detailed annual reports with the court. A guardian reports on the person’s health and living situation. A conservator provides a full financial accounting. These reports are required for the entire duration of the guardianship or conservatorship, often for the protected person’s lifetime. Failure to comply may result in the guardian or conservator being removed and may also result in legal liability.

Get The Informed Guidance Your Family Needs

We are here to guide you through these complex decisions with compassion and clarity. To discuss your family’s situation with an experienced lawyer at Curley Law Firm LLP, please call us at 866-406-8582 or reach out to our office through our online form.