An Introduction to Guardians and Conservators

What is a Guardian or Conservator?

A guardian is a person appointed by the probate court to handle the personal and medical affairs of an incapacitated person. A conservator is a person appointed by the probate court to handle only the financial affairs of an incapacitated person.

Guardians and Conservators for Elders

An elder may require a guardian if he or she is no longer able to mange his or her personal or financial affairs. Guardianship and conservatorship proceedings may become necessary due to lack of appropriate planning or due to special circumstances not anticipated by a health care proxy or power of attorney.

Seeking guardianship or conservatorship over an elder is especially difficult when the elder has lived independently up to incapacity. Elders may need the help provided by a guardian, but fear losing control over their lives and losing the respect of their friends and families. I strongly recommend that families speak with the elder about the need for guardianship proceedings before filing documents with the court.

The New Massachusetts Uniform Probate Code

The Guardianship provisions of the new Massachusetts Uniform Probate Code took effect on July 1, 2009. These provisions have drastically changed the way our Commonwealth approaches guardianships and conservatorships. The new laws are intended to update the antiquated guardianship system and increase protections for incapacitated persons.

Court Proceedings

Any incapacitated person or any person interested in the welfare of an incapacitated person may file for guardianship or conservatorship. The petition must specify a person to act as guardian or conservator and include specifics about why a guardian or conservator is necessary. The court will require a medical certificate completed by a physician treating the incapacitated person, along with a bond and other forms promulgated by the court. The petitioner must provide notice to the incapacitated person, and the incapacitated person is entitled to counsel upon request. For the current court forms, please follow the link for Guardianship and Conservatorhip Forms.

Do I Need a Lawyer?

A petitioner seeking guardianship or conservatorship is not required to seek representation by counsel. However, the appointment process and the resulting fiduciary responsibilities involve navigating the probate courts and a myriad of legal obligations. An attorney can help you understand and manage the court appearances and legal obligations related to guardianships. Once a conservator has been appointed by the court, the protected person’s estate may be used to pay expenses related to seeking guardianship and conservatorhsip, including court fees and attorney’s fees.

What Do Guardians and Conservators Do?

A guardian has custody of the person of the protected person, and is responsible for making all decisions regarding the incapacitated person’s support, care, education, health and welfare that the incapacitated individual is unable to make for himself or herself. A conservator has custody of the protected person’s estate, and must develop a plan to manage, expend and distribute the assets of the protected person. Both Guardians and Conservators must file annual reports with the court.

Next Week

Next week (the week of October 26th) I will explore the differences between the responsibilities of guardians and conservators (court appointed fiduciaries) and the responsibilities of agents appointed by planning documents such as powers of attorney and health care proxies.