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Can you apply for a Rogers guardianship?

In certain situations, a vulnerable adult who does not have the ability to understand or give consent may need someone to make legal decisions for them. Usually, a legal guardian can serve in this role. However, in a situation requiring "extraordinary" medical treatment, a guardian will need additional authority, called Rogers authority.

What is a Rogers guardianship?

A Rogers guardianship is a special type of guardianship that allows a guardian to make decisions about extraordinary medical treatment. These guardianships are required in certain situations.

When do you need a Rogers guardianship?

Rogers guardianships are required whenever an incapacitated person requires extraordinary medical treatment and lacks the ability to consent to it. There is no single definition of "extraordinary medical treatment" under Massachusetts law.

Some examples are:

  • Treatment with antipsychotic medications;
  • Sterilization;
  • Abortion;
  • Psychosurgery;
  • Particularly risky or experimental treatments

When a decision must be made regarding these types of treatments, a judge must first make a legal finding that the incapacitated person is not competent to give informed consent to the treatment. The judge then must make a "substituted judgment" decision.

What is a "substituted judgment" decision?

A judge must attempt to determine what the incapacitated person would choose to do if they were competent to make the decision. This is a highly individualized analysis that includes factors such as the person's expressed opinion; religious beliefs; the likelihood and severity of side effects; the effect of the treatment on the person's relationship with their family and the prognosis with and without treatment, or with a different method of treatment. Because these decisions are so individualized, judges can reach very different decisions in cases that are otherwise similar based on the individual's beliefs and opinions.

Who is involved?

Any of the following can petition for a Rogers guardianship:

  • Family member
  • Doctor
  • Hospital
  • Friend
  • State agency

This person must file the Guardianship requesting Rogers authority. They must inform the court about the specific treatment sought and reasons for it. The proposed treatment plan should clearly state how it will benefit the incapacitated person and how it is in their best interests. The petitioner can either ask to be appointed as Rogers guardian themselves, ask the court to appoint a specific person, or ask that the court appoint some qualified person as Rogers guardian.

To protect their rights, the incapacitated adult must be notified that someone is attempting to file for a Rogers guardianship. He or she has the right to an attorney, as well as the right to attend the hearing, and the right to object to the guardianship or to the person seeking guardianship.

What happens after a Rogers guardian is appointed?

When a judge appoints a Rogers guardian, she or he will also appoint a Rogers Monitor to ensure that the incapacitated person is treated in accordance with the court-approved plan. The Monitor reviews medical and treatment records and may meet with medical staff. The Rogers Monitor is required to file a report with the court at least once a year.

A judge will hold a review hearing at least annually for each Rogers guardianship. At the hearing, the judge will review the Rogers Monitor's report and other records and determine whether the guardianship is still necessary. If the incapacitated person has recovered their capacity or no longer requires extraordinary treatment, the court may terminate the Rogers guardianship.

Families are often challenged by high-stakes issues with long term effects, often including their children. These can be some of the most difficult circumstances that a family will face. The potential long-term consequences often compound the stress.We know that every family--and situation--is different. Our attorneys are trained to listen to your needs and act on them. We provide each client with a legal plan designed to help them achieve their unique goals.

Our Family Law attorneys work on the full spectrum of family law matters, from the most complex cases to uncontested matters. Our clients benefit from the extensive experience our lawyers have in related practice areas. Our proficiency extends to guardianships of elderly or incapacitated people, grandparents seeking custody of their grandchildren as well as the appointment of conservators to manage the finances and assets of incapacitated people. When there are overlapping issues, in a case involving, for example, real estate, businesses interests, trusts, estates, pensions, bankruptcy or other tax and estate planning matters, our clients receive quality representation in all aspects of their matter.

People sometimes lose the capacity to manage their personal or financial affairs, or to make health care decisions. Sometimes the necessary legal plans to protect them have not been implemented. At such times, family members or friends may need to obtain a guardianship and conservatorship.

Guardianship of a person often relegates the following responsibilities to a trusted guardian:

  • determining and maintaining a person's residence;
  • providing informed consent to and supervising their medical treatment;
  • consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling;
  • making end-of-life decisions;
  • maintaining the protected person's autonomy as much as possible

Conservatorships relegate financial decision-making, asset management and related responsibilities, such as:

  • monitoring a person's assets and income;
  • making investment decisions;
  • paying for a new residence or ongoing care;
  • overseeing spending and providing a limited allowance;
  • protecting the individual from making bad financial decisions due to incapacity

Our attorneys are experienced with a variety of guardianships and conservatorships. We will guide you through the process, assess the needs of your loved one, gather the appropriate medical documentation, and obtain the necessary orders.

We can also assist with the creation of healthcare proxies and durable powers of attorney to plan for the future.

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