An adult with declining health, or one who has suffered a serious injury, may be unable to manage his or her own affairs. If this happens, it could become necessary to appoint a guardian to look after that individual’s best interests. An adult guardianship ensures that the needs of an incapacitated person are properly met and his or her welfare is protected. At the same time, these legal arrangements allow considerable authority over the person who has suffered the injury or experienced health problems.
For that reason, the law grants certain legal protections to the individual over whom the guardianship is sought. The Estates & Trusts attorneys of SederLaw can help you and your family establish a guardianship.
What Is An Adult Guardianship?
A guardian is a court-appointed individual who takes care of and makes decisions for an adult who is incapacitated. An incapacitated person is one who lacks legal capacity. To designate someone as incapacitated, the court must determine that an individual does not have the ability to make informed decisions or judgments about his or her own well-being. Incapacity often occurs because of either a disease, such as Alzheimer’s, or a serious injury that affects the person’s mental and/or physical abilities.
Under Massachusetts law, there are two types of guardianships:
- Plenary. This is also known as a complete guardianship. A plenary guardianship is established in situations in which the incapacitated person is unable to make any decisions for him- or herself.
- Limited guardianship. Incapacitated individuals don’t always need help with everything, but may have specific needs. A limited guardianship allows the court to essentially tailor the guardian’s responsibilities to the individual’s unique circumstances.
Examples Of Incapacitated Persons
Incapacity can happen to anyone for a variety of reasons. The court may consider the following individuals, among others, to be incapacitated for purposes of appointing a guardian:
Someone with a disabling condition. This refers to a person with a clinically diagnosed medical condition that causes an inability to receive and evaluate information. Such a condition may cause the person to be unable to communicate certain decisions regarding his or her health, safety, or self-care.
Someone who is intellectually disabled. Intellectual disability is evidenced by significantly below average intellectual functioning. This is typically defined as an IQ of less than 70. An intellectually disabled individual also has limitations in adaptive skills such as health, safety, communication, self-care, and social skills.
Someone with a mental illness. A mental illness is a medical condition that interferes with a person’s thoughts, emotions, mood, and ability to relate to others. Someone experiencing a mental illness often struggles to accomplish routine daily functions, potentially jeopardizing the individual’s health and safety.
Someone with special circumstances. There are other cases in which a person may require a guardian, including:
- An elderly parent with a degenerative health condition who can’t consent to treatment or placement in a nursing facility
- A person who has experienced a traumatic brain injury
- A disabled child who is becoming an adult (turning 18)
What Are The Guardian’s Responsibilities?
Guardians are primarily responsible for the following matters:
- Acting in the best interests of the incapacitated person
- Taking the incapacitated individual’s desires, concerns, and values into consideration in all decisions
- Notifying the court of certain changes, such as a change in address for either the guardian or the incapacitated person
- Notifying the court if the incapacitating condition ends
- Filing a copy of the incapacitated person’s death certificate if the individual dies during the guardianship
Because guardianships impose limitations on the incapacitated person’s liberties, courts are careful to ensure the guardian does not overstep certain bounds. There are a few things the guardian therefore cannot do, such as:
- Remove an existing health care proxy
- Spend or give out the incapacitated person’s income or assets
- Manage the individual’s finances (this would be more appropriate for a conservatorship)
Who Can Serve As A Guardian for an Adult?
Although a family member is typically the one appointed to serve as a guardian, a relative will not automatically become a guardian simply by reason of his or her relationship to the incapacitated individual. Courts will take a number of factors into consideration, and they won’t appoint someone who:
- Is currently being investigated for criminal activity
- Is being investigated for neglect of the incapacitated person
- Has pending charges for assault and battery of the incapacitated individual
How To Petition The Court For An Adult Guardianship
The Probate and Family Court is responsible for appointing guardians to care for incapacitated individuals. The person who wants to be a guardian is called the petitioner, while the incapacitated person is known as the respondent. After deciding which type of guardianship is desired (plenary or limited), the petitioner will file these forms:
- Petition for Appointment of Guardian for an Incapacitated Person (MPC 120)
- Medical Certificate (MPC 400), completed and signed by a physician, licensed psychologist, or psychiatric nurse clinical specialist. The incapacitated person must be examined within 30 days of when the petition is filed.
- Bond (MPC 801), which must include the estimated value of the incapacitated person’s real estate and personal estate
Other forms may be needed, so check with a knowledgeable Family Law & Probate attorney.
Once the proper forms are filed and fees are paid, notice of the proceedings must be served upon the respondent. The contents of such notice and the manner in which it is served has to meet certain requirements.
A court hearing will be necessary to assess whether the respondent is in fact incapacitated and what the nature of the guardianship, if ordered, will be. The respondent has the right to legal representation and to object to the guardianship, so it’s essential that the petitioner have skilled counsel. That’s where our firm comes in.
Contact a Worcester Adult Guardianship Attorney Today!
The decision to request a guardianship is an emotionally complicated one that you and your family must carefully weigh. SederLaw is here to guide you through the legal hurdles that must be overcome to acquire one. If you have questions about establishing a guardianship for an adult or you’re ready to ask the court for one, connect with our compassionate legal team.