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Legal Guardianship -  The Facts*

Under Massachusetts law a court-appointed guardian has the legal authority to perform a wide variety of personal and financial functions on behalf of his or her Ward (the person under guardianship).  Here are answers to some of the most frequently-asked questions about legal guardianship of adults in Massachusetts.  However, for complete information you should consult an attorney who specializes in guardianship matters.

FAQS

Q:  What is a legal guardian?

A:  A legal guardian is someone who is appointed by a court (in Massachusetts the Probate and Family Courts have jurisdiction to appoint guardians) to care for the person and property of someone who has become incapable of caring for himself or herself.  The legal grounds for appointment of a guardian are "mental illness" (a term which may include not only psychosis but also organically-based mental conditions such as Alzheimer's disease), physical incapacity or illness, mental retardation and spendthrift status.  return to FAQ List

Q:  What is a conservator?

A:  Conservatorship is a lesser form of guardianship involving management of property only and not of the person.  The legal grounds for appointment of a conservator are mental weakness, mental retardation and physical incapacity.  If appointment is sought for physical incapacity only, the assent (agreement) of the proposed Ward is required.   return to FAQ List

Q:  Who may be a guardian or conservator?

A:  Any competent adult may be appointed by the court as the guardian or conservator of another.  Often a family member such as a spouse, son, daughter, brother or sister is appointed, but there is no legal requirement that a guardian or conservator be a family member.  Occasionally, when there is a need for guardianship or conservatorship and no suitable family member is available to serve, the court will appoint an unrelated person such as a lawyer or social service professional to act as guardian or conservator.   return to FAQ List

Q:  Who is entitled to notice of a court proceeding for the appointment of a guardian or conservator?

A:  The proposed Ward and the proposed Ward's next of kin and heirs at law, i.e., persons who stand to inherit from the proposed Ward in the event of his/her death, are normally entitled to advance written notice of guardianship or conservatorship proceedings.  After a petition for guardianship or conservatorship has been filed, the court issues an order specifying the exact manner in which notice is to be given, and the attorney who represents the petitioner usually handles the giving of notice to interested parties.  Also, the court usually requires the publication of a legal notice in the newspaper and in some cases the giving of notice to the Departments of Mental health, Mental Retardation and/or the United States Veterans' Administration.   return to FAQ List

Q:  Is it necessary to hire a lawyer to petition the court for appointment of a guardian or conservator?

A:  As a practical matter, yes.  While court rules permit people to represent themselves, this is usually not a good idea in guardianship or conservatorship cases.  Because of the complexity of guardianship law and court procedures, it is highly advisable for a person seeking appointment of a guardian or conservator to engage an attorney who specializes in this area of the law.  The attorney can also assist the guardian or conservator once he or she is appointed in carrying out his/her ongoing duties with respect to such things as preparation of annual accountings, asset management and preparation of tax returns.   return to FAQ List

Q:  How long do guardianship or conservatorship proceedings take, what is the typical cost, and who pays for the proceedings?

A:  It normally takes about a month to fives weeks from the date of the filing of the petition for the court to appoint a guardian or conservator.  This is because of the notice requirements mentioned above.  However, if the proceedings are contested (i.e., opposed by someone), they can take longer.  In urgent or emergency situations, the court can appoint a temporary guardian or conservator immediately, and the temporary appointment can continue until a permanent appointment is allowed.

The legal fees for an uncontested guardianship proceeding (in this office) are normally about $2,000, not including court filing fees and publication costs, which normally cost an additional $150 to $200 (AdvoGuard, Inc. does not provide legal services).  In most cases the person seeking the appointment of the guardian or conservator will have to advance these funds to the attorney, but the person who advances the funds has the right to be reimbursed in full from the assets of the Ward for his or her legal expenses and costs once a guardian or conservator is appointed.    return to FAQ List

Q:  What are the powers and duties of a guardian or conservator?

A:  A guardian or conservator has the authority and duty to take charge of and manage the Ward's assets, such as the Ward's cash, bank accounts, stocks and bonds and real estate.  Under appropriate circumstances and with court permission, a guardian or conservator can also engage in "estate planning" for the Ward.  This may include such things as setting up trusts for the benefits of the Ward and others, making gifts such as the Ward would make if he/she were competent, and taking appropriate steps to reduce the Ward's estate taxes and promote the Ward's Medicaid eligibility.

In general, a guardian or conservator has the legal authority to do anything that the Ward could do if he or she were competent.  This may include choosing where the Ward will live, signing legally-binding contracts, and consenting to hospital admission, medical treatment, and nursing home admission.
return to FAQ List

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*Reprinted by permission of:
Attorney Paul F. Donovan
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