If you are asked to serve as guardian for either an incapacitated adult or a minor, there are several questions you should ask before accepting this fiduciary role. It is critical to understand what you are signing up for before you agree to serve. Various duties and obligations will coincide with the guardianship, both before and after the Court formally appoints you.
What is a guardian?
A guardian is a fiduciary responsible for making and overseeing personal decisions on behalf of an individual who is unable to manage his or her own affairs or make his or her own decisions due to minority or incapacity. For example, a five-year-old child does not have the ability to make their own decisions related to where they should live. A guardian’s powers include making decisions related to such person’s support, care, education, health, and welfare.
Do I also need to make decisions related to finances?
Only in a very limited manner, if at all. In Massachusetts there is a distinction between a conservator and a guardian. A conservator deals with the protection of the property and business affairs of a person needing protection, while the guardian manages the respondent’s physical well-being. A conservator is appointed to manage the property of a minor or an adult who, because of disability, cannot manage his or her own property, or has property that will be wasted or dissipated unless management is provided. Petitions for guardianships and conservatorships are often filed together, so that the case may be heard by one judge at the same time, addressing all the needs of the respondent. Sometimes the same person serves as both guardian and conservator, but in other cases two separate individuals are appointed.
Am I capable to serve as a guardian?
Under the applicable law, any suitable person may be appointed guardian. Before making an appointment designating guardianship or conservatorship, the Court must consider the express preferences of the respondent who had made the request. It is possible he or she has nominated a guardian in a writing such as a will or durable power of attorney or may just communicate to the Court who they wish to serve as guardian. Even without an estate plan already in place, a minor who is fourteen years or older is entitled to submit a form nominating his or her guardian. The Court will appoint the nominated individual unless the nominee is not qualified or there is other good cause not to appoint that person.
Am I being asked to serve as a temporary or permanent guardian?
It is possible you have been asked to serve as a temporary guardian. Maybe an incapacitated person needs a guardian for the next month while recovering from some type of mental health crisis. Perhaps you have filed your petition for permanent guardianship for a minor but need a temporary guardian in place immediately because the minor has no parents. The person seeking guardianship (“Petitioner” or “Moving Party”) may ask for a temporary guardian if such an emergency exists. While the permanent guardianship awaits a hearing date and order, the petitioner may ask the Court to appoint a temporary guardian in the interim. If allowed, the temporary guardian will likely serve for ninety (90) days, unless extraordinary circumstances allow for a longer period. A permanent guardian, on the other hand, will serve indefinitely, until termination (more on this below).
Is this a full or limited guardianship?
It is proper public policy to preserve an adult’s autonomy and decision-making ability. The statute authorizes the Court to limit the scope of a guardianship as appropriate and encourages persons who are incapacitated to participate in decision-making and to care for oneself to the extent that they can do so.
With that in mind, guardians may be “plenary” or “limited”. A plenary guardianship is also known as a full guardianship. This type of guardianship generally removes all personal decision-making responsibility and authority from the incapacitated person. The guardian figuratively steps into the shoes of the respondent and makes all his or her decisions (other than financial). Courts are reluctant to grant full guardianships and the petitioner will need to prove why a limited guardianship is not appropriate.
The concept of a limited guardianship allows the Court to address specific areas of incapacity and tailor the guardianship to meet an individual’s unique circumstances. It is important to remember individuals may be competent for one purpose and not competent for another. For example, an individual may be able to make their own day-to-day decisions, but the guardian makes medical decisions. Or it is possible to tailor a guardianship to allow the respondent to retain the right to manage his or her medical treatment and medications, but the guardian makes all other decisions.
What are my powers and duties?
Specific powers are conferred onto a guardian, as detailed in the applicable statute and the court may grant additional powers if necessary.
The general duties and powers of the guardian include making decisions for the respondent regarding his or her support, care, education, health, and welfare. Beyond those powers, a guardian must specifically ask for authority to: admit the respondent to a nursing home; revoke the respondent’s health care proxy; or treat the respondent with any other extraordinary treatment requiring substituted judgment. Extraordinary medical treatment includes electroconvulsive therapy; treatment with antipsychotic medication; sterilization or any other intrusive treatments. This type of extraordinary medical decision-making will require additional procedures and safeguards through the Court.
The guardian must act in the respondent’s best interests, keeping in mind their expressed desires. A guardian should encourage the respondent to participate in their own decision-making and must only act as necessitated by the respondent’s incapacity.
Procedurally, a guardian must file an initial guardian care plan report within sixty (60) days of appointment and the annual guardian care plan report every year on the anniversary of the appointment. The reports include details related to the respondent’s condition, a simple accounting related to the respondent’s assets, and provides other information such as the respondent’s social status, living arrangements, medical and educational services, and plans for the future.
Will I be the guardian forever?
If you are a suitable guardian and the respondent requires permanent protection, it is possible you will serve as guardian for the duration of the respondent’s lifetime. Upon the death of the respondent, the guardianship will terminate. For guardianship of minors, typically that terminates upon a minor turning eighteen (18). If an incapacitated person becomes no longer incapacitated, the guardian has an obligation to petition the court to terminate the guardianship.
If you have accepted guardianship responsibility, but no longer can continue, you have the option to resign. If you are found to be unsuitable, the Court has the power to remove you.
Do I need my own legal representation before I agree to serve as a guardian?
If you discharge your duties and obligations as guardian honorably and in the best interests of the respondent, then likely no. Guardians may retain legal counsel to assist with the preparation and filing of guardian care plan reports or if general advice is needed. However, if you are acting as petitioner in a guardianship action, it is highly recommended to work with an attorney. The preparation of required forms and representation in court proceedings requires legal expertise. Depending on the circumstances of your case, the guardianship may require creative legal strategy and numerous court hearings before the guardianship is granted.