This is the first of a three-part post on Massachusett’s Guardianship Law. In this post I intend to briefly explain what it means to be a guardian, who may be appointed a guardian and in what circumstances a guardian may be appropriate.
WHAT DOES IT MEAN TO BE A GUARDIAN:
A guardian is a person appointed by the Probate and Family Court to handle the personal affairs of either an “incapacitated person” (adult) or “ward” (minor child). A guardian generally is in charge of making decisions regarding another’s medical treatment, personal care / needs, residence and matters concerning their well-being. Limitation: A guardian generally does not handle the financial management or decision-making for another – a conservator will generally need to be appointed to handle such matters.
WHO MAY PETITION TO BE APPOINTED GUARDIAN:
Any qualified person may be appointed guardian (that’s right, any individual may have standing to petition for guardianship of another). This includes your grandparents, neighbor, aunt, best friend, grocer or favorite basketball player. However, here comes the catch, certain classes of people are excluded from serving as guardians. Those classes included:
a. Assault and Battery: An individual being investigated or has charges pending for committing an assault and battery that resulted in serious bodily injury to the alleged incapacitated person.
b. Neglect: An individual being investigated or has charges pending for neglect of the incapacitated person.
However, just because you may have standing to seek appointment as guardian does not mean that the court will “rubber stamp” your petition with its seal of approval. There are certain standards and procedures that must be satisfied prior to being granted guardianship (it is easier for me to explain the exact standards and procedures in-person or by telephone).
WHEN WOULD AN INDIVIDUAL SEEK TO BE APPOINTED GUARDIAN OVER ANOTHER:
The appointment of a guardian may be appropriate when an individual – adult or minor child – suffers from a “clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extend that the individual lacks the ability to meet essential requirements for physical health, safety or self-care, even with appropriate technological assistance.” (MUPC Definition)
Practically speaking it may be appropriate to seek guardianship if:
a. an individual is mentally incompetent;
b. an individual is mentally ill;
c. an individual is severely physically impaired
It may be appropriate to seek guardianship of a minor child if:
a. the caretaker / parent’s of the minor child are unfit
b. the caretaker / parent of the minor child is neglectful of the minor child
Below are a few situations when you may wish to speak with an attorney about guardianship:
i. When a parent or loved one is diagnosed with Alzheimer’s disease;
ii. When a parent or loved one can no longer physically care for themselves due to advanced age, poor health or severe injury;
iii. When a parent or caretaker is abusing their spouse in the presence of a minor child;
iv. When a parent or caretaker is abusing the minor child;
v. When a teenage parent does not wish to place their minor child up for adoption but currently lacks the ability to care for their minor child; or
vi. When parent’s suddenly pass away leaving a minor child without someone to care for him or her
If you have any further questions about guardianship law in Massachusetts or you feel that someone you know may benefit from some further information please feel free to send me an email or contact my office.
COMING NEXT: MA Guardianship Law Part 2: Duties and Powers of Guardians (stay tuned!)
I wish you all the best.
DISCLAIMER: This communication provides general information and does not constitute legal advice. Attorney Advertising. Prior results do not guarantee a similar outcome.