Guardianship and Conservator

In Massachusetts, a legal guardian and/or conservator may be established over a person that is a minor, mentally incompetent, disabled, or is suffering from severe dementia. Conservators and guardians are appointed by a Massachusetts Probate and Family Court to manage the financial and/or medical and personal affairs of an individual. As a court-supervised process, it is a public proceeding. Once appointed there are various duties imposed on the guardian to not only oversee the ward’s care, but to also account for the individual’s property in regular reports to the court. If the individual requires admittance to a facility and/or the administration of antipsychotic medication, specific authorization from the court may be required. In Massachusetts, this separate authorization is commonly referred to as a Roger’s guardianship.

The person who is appointed guardian and or conservator, is not often aware of the awesome responsibility that accompanies the appointment(s). This is because depending on the powers granted to a guardian and a conservator, the individual or ward may be rendered powerless over his or her personal needs, medical treatment and/or property. In Massachusetts, the probate and family court has the power to consent to the appointment of guardians and conservators. Once appointed, the guardian then files care reports. In the case of a conservator, said person files an inventory and accounts for the property, income, and expenses of the incapacitated person.

Nominating a suitable person to care for your children if you become incapacitated or at death can be a difficult decision. It is also important to name alternate guardians, in the event your initial choice is not available or becomes unsuitable. While the court gives great consideration to the person you nominate to serve as guardian, it ultimately makes its decision based upon the best interest your child. Since no one can truly be replaced, for some this decision is more about making it clear who a parent does not want to care for a minor child. Remember, a Last Will and Testament becomes effective upon death, so the nomination of someone to act as guardian for your minor children in your Last Will and Testament does not become effective until you die. In the event you need someone to serve as a guardian for your minor children while you are alive, Massachusetts allows parents to nominate a guardian on a temporary or emergency basis.

Is your child or grandchild a beneficiary of your estate? Making a bequest to a child in a last will and testament or naming a child as a beneficiary of a life insurance policy, individual retirement account (IRA) or 401(k) may have unintended consequences and costs. A conservatorship of a minor’s estate or property may need to be established for a minor or other individual who lacks the capacity to receive an inheritance. Depending upon the amount that is left to the minor, a conservatorship may be required even though the minor is being cared for by a parent. It is very common that an insurance company holding the proceeds of a life insurance policy may require the establishment of a conservatorship over a minor before the company releases the money.

Proxy/Trust: Avoiding the Probate Courts Altogether
It is preferable that a person make known his or her own wishes in advance, including who should manage a person’s property and care for their personal needs. While in some instances a guardianship and or conservatorship may become necessary despite proper planning, a well-drafted durable power of attorney, health care proxy, living will and even a property funded trust will often allow one’s personal and financial affairs to be managed without the need for a guardianship and or conservatorship. These documents also avoid the need for the accompanying court supervision, potential litigation, and responsibilities imposed upon the guardian or conservator– who is often a family member.

To the extent that you are merely managing a benefit paid by the Social Security Administration, another alternative to establishing a guardianship is to serve as the representative payee for the person. This status is approved by the Social Security Administration, not the court, and obtaining this status, will not allow a representative payee to control other property of the individual.

Our Boston Guardianship and Conservatorship law attorneys have years of experience in the many towns of Easton, Middlesex, Norfolk, Plymouth and Suffolk Counties. Let our attorneys assist you in planning your future, by contacting us today. We offer complimentary consultations Boston and in our Brockton, Hingham, Holliston, and Plymouth offices. Call 800-701-0352 for a Consultation with an Experienced Guardianship and Conservatorship Attorney today.

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