Whether through illness, injury, or mental decline, anyone can require a guardian or conservator to care for them if they become mentally or physically incapacitated. Unless the person has the proper estate planning in place that names a guardian, guardianship must be established through county probate court. At Dotchin Law, we guide you through this often complex and emotional process.

OBTAINING ADULT GUARDIANSHIP

Although naming a guardian for a minor child involves a somewhat similar process, obtaining adult guardianship is vastly different in terms of what the court requires as proof that guardianship is warranted. In fact, the process begins with the interested party filing a petition in court that requests the court declare the incapacitated person incompetent.

Sometimes these filings are made “ex parte” (in secret) so a guardianship can be established before family and friends even know it’s happening. Other times, guardianship filings can lead to heated disputes between family members and/or friends who may claim they’d be better suited for the role.

Regardless of who files the petition, guardianship will only be granted if the court determines there’s enough evidence to show the person is mentally incapacitated to the point where they can no longer make legal, financial, and/or healthcare decisions for themselves. If guardianship is granted, the incapacitated person is known as the guardian’s “ward.”

WHO CAN SERVE AS AN ADULT GUARDIAN OR CONSERVATOR?

Although courts typically give preference to a spouse or another close family member, a guardian doesn’t have to be a relative. Provided the person is a competent adult, a close friend, or any other interested party, they can serve as long as they prove they’re best suited for the position.

If a relative or friend is not willing or capable of serving, the court will appoint a professional guardian or public guardian. Sadly, this can lead to horrible financial and/or physical abuse of the incapacitated. So, it’s best to plan ahead and name a guardian in your estate planning documents so you can keep courts out of the picture entirely.

ADULT GUARDIANSHIP AND CONSERVATORSHIP RESPONSIBILITIES

Depending on the extent of the person’s incapacity, a court-appointed guardian can be given near complete control over a person’s life. There are two types of guardianship: guardianship of the person and conservatorship.

Guardianship of the person involves making decisions about the ward’s place of residence, physicians, medical treatment, and a host of other personal issues. Conservatorship involves decisions about the person’s income, legal actions, insurance claims, and many other matters.

Usually one person is appointed for both roles, but the court can also split the responsibilities among multiple parties. For instance, one person may oversee the financial decisions while another handles living arrangements and healthcare. Moreover, the court often requires the guardian and/or conservator to file detailed status reports, like financial accounting, at regular intervals or whenever important decisions are made.

Some of the most common duties of guardians and conservators include:

• Paying the ward’s bills;

• Determining where they live;

• Monitoring their residence and living conditions;

• Providing consent for medical treatments;

• Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated;

• Managing real estate and other tangible property;

• Keeping detailed records of all their expenditures and other financial transactions; and

• Making end-of-life and other palliative-care decisions.

TRUSTED MASSACHUSETTS GUARDIANSHIP AND CONSERVATORSHIP ATTORNEYS

With the huge responsibility and loss of control that comes with guardianship and conservatorship, the process can often feel overwhelming. The best course of action is to use estate planning to name a preferred guardian ahead of time so family won’t have to deal with a courtroom or lawyers in the first place. Unfortunately, that’s not always how life works out.

So, if you need a reliable guardianship or conservatorship attorney, simply call us or click the button below to schedule time for us to speak.