A Guide for Elders: Planning That Protects You and Your Assets, Chapter 7 WHAT IF I NEED A GUARDIAN OR CONSERVATOR? (Or Must Serve as Another Person’s Guardian or Conservator?) WHAT IS A GUARDIAN? A guardian is a person who is appointed by the Probate Court to take responsibility for the care and supervision of another person, called the “Ward,” who has been shown to be unable to care for himself or herself or his or her estate. WHY WOULD I NEED A GUARDIAN? If you become incapacitated, are unable to make decisions to care for yourself, and are unable to take care of your assets or estate, you will need someone to do these things for you. If you have executed a durable power of attorney document as suggested in Chapter 2, the person whom you nominated can take charge of your financial affairs. If you have executed a Health Care Proxy document, the person whom you nominated can take charge of your medical needs. If you have done neither, however, only the Probate Court has authority to appoint someone else to manage your affairs, in the face of your incapacity. WHAT DOES A GUARDIAN DO? The person who becomes your Guardian is responsible for taking care of you and safeguarding you and your estate. The guardian pledges to do whatever is best for you and your property. The guardian is charged to see that you are in a safe environment and that your estate is not dissipated. If you are in a hospital or nursing home, the Guardian should ensure that you are receiving appropriate care. Once the Guardian is appointed, he or she must file an inventory of your assets or property with the Court, must manage your affairs, and must file an annual accounting of his or her stewardship. HOW IS A GUARDIAN APPOINTED? If you are incapacitated and unable to manage your affairs, two relatives or friends may file a petition with the Probate Court asking that a suitable person (whom they propose) be appointed to serve as your Guardian. In support of their request, the Petitioners must submit a medical certificate in which a doctor asserts that you are not capable of caring for yourself and your estate (meaning, what you own in your own name). The person requesting to be appointed as Guardian must file a bond, which assures the Court that he or she will be faithful to the Ward’s interests. The bond must be signed by “Sureties,” that is, two persons who vouch for the integrity of the proposed Guardian, and, as Sureties, are potentially liable to the Ward for any misdeeds of the Guardian. The petitioners must give notice of their petition to the Ward, to the heirs at law of the Ward (see first appendix, Chapter 4), to the Department of Mental Health, to the Office of Veterans Affairs, if appropriate, and usually must publish a legal notice in the newspaper. WHO MAY BECOME YOUR GUARDIAN? The Court should appoint as Guardian someone who is familiar with you and your situation: a family member or friend, who is an adult, and who is willing to take on the responsibilities of Guardian. The Guardian should be someone who can be trusted to act in your best interests. WHAT IF I DO NOT HAVE A FAMILY MEMBER OR FRIEND TO SERVE AS MY GUARDIAN? If your estate can afford to pay for the services of a Guardian, the Court may appoint an attorney or a social services agency to serve. If your estate cannot afford to pay for such services, then there may be public funds available to pay for such services. Currently, such public funds are very limited and often not available at all. Massachusetts does not have a public guardianship law that would protect a Ward who needs a Guardian but has nobody to serve. HOW WILL I KNOW IF I NEED A GUARDIAN? It is very likely that you will not know, by reason of your incapacity, that you need a Guardian. Those around you, family members, friends, or neighbors will recognize the need. Since anyone can be incapacitated at any time, you should nominate the person you would want to serve as your Guardian if and when the need should arise. You can do so in the durable power of attorney document or in a health care proxy document, and the Court will give great weight to your request. WHAT HAPPENS TO ME IF A GUARDIAN IS APPOINTED OVER ME? The guardian will make all the decisions which you had the right to make before your incapacity. Unless the Court limits the authority of the guardian, his or her powers are plenary, that is, they are full and complete (the only exception is that the decisions of a Health Care Proxy agent take precedence over the decisions of any person, including a guardian, on health matters). You lose your autonomy, and the rights you have as an adult and as a citizen. You no longer have the right to make decisions about your physical care, where you will live, or how your finances are managed. Given these losses of important rights over your own autonomy, it is important that you have input into who may end up with this authority. DO I HAVE ANY CONTROL OVER WHO WILL BE APPOINTED AS MY GUARDIAN? If you have nominated a person to serve as your guardian, should such a need arise, in either your Durable Power of Attorney document or your Health Care Proxy document, the Court will give great deference to your wishes. Your nominee would be appointed, unless the Court was persuaded that he or she was not a suitable person to serve in that capacity. DOES A GUARDIAN ALWAYS HAVE FULL AUTHORITY OR MAY I RETAIN SOME CONTROL? The Court is likely to give the Guardian full and complete authority over you as the Ward. The judge may, however, limit the Guardian’s authority to only those areas of your life where you need assistance. For example, a Guardian may be appointed to make medical decisions, but the ward may be permitted to continue to handle her own funds. The Court could limit the Guardian’s authority by ordering that certain actions would require the Court’s approval, for example, placement in a nursing home. The Court may also set a time limit on how long the guardianship will remain in effect. “Temporary guardianships,” usually prompted by a medical emergency, are effective for only 90 days, and must be renewed by the Court before the term expires. IS THE APPOINTMENT OF A GUARDIAN A FINAL DECISION? A Ward has the right to petition to have a Guardian removed for good cause, if the Ward can show that the Guardian has acted improperly. Similarly, the Ward has the right to petition to have the guardianship dissolved if the incapacity has ceased, and the health of the Ward has been restored. WHAT IS A CONSERVATOR? WHY WOULD I NEED ONE? A Conservator is a fiduciary, like a Guardian, appointed by the Probate Court, but has responsibility to manage only the Ward’s financial affairs or estate. A Conservator has no authority over the person of the Ward, and can make no decisions other than those having to do with financial matters. If you are unable to manage your financial affairs or assets, and there is a danger that you may suffer losses as a result of your incapacity, the Probate Court, upon petition, may appoint a person to manage your financial affairs. Unlike the situation in a guardianship, the Ward may assent, or agree, to the petition, if the medical certificate asserts that the Ward understands the nature of his or her assent. WHO CAN SERVE AS MY CONSERVATOR? As in the case of a Guardian, a family member or trusted friend, a lawyer or other professional, or any person with a suitable background may serve as conservator, again, assuming that the proposed conservator can be trusted to act in the best interests of the Ward. WHAT IF I AM ASKED TO SERVE AS SOMEONE ELSE’S GUARDIAN OR CONSERVATOR? In order to serve as the fiduciary of another, you must understand and be willing to take on the responsibilities of looking after the interests of the Ward. If you agree to serve as guardian, you should seek out appropriate counsel to prepare and file the necessary papers: the petition, the medical certificate, the bond with sureties, and you must be prepared to tell the Court why a guardian is needed, and what you plan to do to protect the Ward. You should be prepared to give the Ward the care and attention that you would expect if the situation were reversed. WHERE CAN I GET MORE INFORMATION?  You can contact your local Council on Aging or your Aging Services Access Point, or obtain legal referrals from various sources (see the last paragraph of Chapter 2).    Back to start of Chapter 7 Back to Table of Contents of A Guide for Elders On to Chapter 8