For a variety of reasons, Massachusetts residents are often unable to make decisions regarding their own care. For this reason, many people execute Health Care Proxies, which nominate someone, usually a spouse or other close family member, to make decisions on their behalf. Unfortunately, not everyone has this foresight. If an individual lacks the capacity to make their own decisions, and does not have a Health Care Proxy, then they will need a legal Guardian.
As an aside, in 2009 the Guardianship and Conservatorship provisions of the Massachusetts Uniform Probate Code went into effect. One major change of this law is that the court now distinguishes between a Guardian (one who has authority over medical and personal decisions) and a Conservator (one who has authority over financial decisions). Often times the two types of proceedings occur simultaneously, and this post is applicable to both.
Before Guardianship even enters one’s mind, they must recognize that their loved one is unable to care for themselves. Becoming aware of the need for a Guardianship is the first step in the process. Once someone (usually a family member or caretaker) realizes that a Guardianship may be necessary, they should speak to a Massachusetts guardianship attorney about how to move ahead.
Once the need for a Guardianship is recognized, and someone has decided that they would like to be appointed Guardian, then they must petition the Probate and Family Court to be appointed Guardian. However, the Petitioner (typically the proposed Guardian) must first gather evidence that the Respondent (the allegedly incapacitated person) does in fact lack legal capacity. Usually this evidence is in the form of a medical certificate, completed by a physician after a mental examination. In Guardianship of Minor cases, a medical certificate is not necessary, because the basis for Guardianship is the age of the Respondent, not their medical condition.
Next, the Petitioner must determine, often with the help of the doctor who completed the medical certificate, what decisions the Respondent is still capable of making for themselves. With the MUPC in place, the perspective of the court is that an individual should retain as much personal autonomy as they can handle. Accordingly, the court seeks to limit the authority of the Guardian to only those decisions that the Incapacitated Person cannot make for themselves.
Once the Medical Certificate has been obtained, and the Petition and related documents have been completed, they are filed at the Registry of Probate, and the case is assigned a docket number. Please note that the Petition must be filed within 30 days of the date on the Medical Certificate. If circumstances delay the filing, then the Petitioner will have to obtain a new Medical Certificate. After filing, there is then a notice period, where the Petitioner must notify certain family members of the Respondent, and publish notice in a newspaper according to a Citation issued by the court. It is generally helpful to obtain family members’ written assents to the Petition and file them simultaneously, which is fairly easy if everybody is on board with the Guardianship.
Following the notice period, the Petitioner must schedule a hearing on the Petition. At the hearing, the Probate Judge will review evidence in the file, and ask questions of the Petitioner, his attorney, and any other persons involved in the case. If anyone objects to the Guardianship, they will have the opportunity to state their objections. Please note, the MUPC requires that a Medical Certificate be completed within 30 days of the hearing. Because Guardianship proceedings typically take longer tan 30 days from the filing of the Petition to the hearing date, this means that a new Medical Certificate must be obtained prior to the hearing.
If the hearing satisfies the Judge that the Guardianship is proper, then he will issue an Decree appointing the Petitioner as Guardian. In theory, a cut-and-dry case can go through the Guardianship process fairly quickly. However, life is seldom so cut-and-dry, and the assistance of an attorney is recommended for Guardianship and Conservatorship cases. Check back later for more posts on Guardianship and Conservatorship in Massachusetts.