For the most part, we are free to make our own decisions regarding how we live, where we live, how we spend our money and even with whom we socialize. However, when we are no longer capable of caring for ourselves, most commonly due to advancing age or dementia, or if an accident or illness occurs and we can’t manage our affairs, it may be necessary to seek a guardianship, as explained in the recent article “Legal Corner: A guardian can be a helpful tool in cases of incapacity” from The Westerly Sun. A guardianship is also necessary for the care of a child or adult with special needs.
If no proper estate planning has been done and no one has been given power of attorney or health care power of attorney, a guardianship may be necessary. This is a legal relationship where one person, ideally a responsible, capable and caring person known as a guardian, is given the legal power to manage the needs of a ward, the person who cannot manage their own affairs. This is usually supported through a court process, requires a medical assessment and comes before the probate court for a hearing.
Once the guardian is qualified and appointed by the court, they have the authority to oversee everything about the protected person’s or incapacitated individual’s life. They have power over the protected person’s money and how it is spent, health care decisions, residential issues. At its essence, a guardianship is akin to a parent-child relationship. While some states use the term “guardian” as a more global term that includes health-related and financial matters, in Massachusetts, the Massachusetts Uniform Probate Code (MUPC) bifurcates the traditional duties of a guardian to those dealing with health care or more personal issues and those that are strictly financial. A guardian appointed by a court in Massachusetts has power over the person; whereas, the individual appointed by the Court to manage a person’s financial affairs is called a conservator. The proceedings and court filings also make a distinction between guardianship and conservatorship.
Guardianships (and conservatorships) can be tailored by the court to meet the specific needs of the individual in each case, with the guardian’s powers either limited or expanded, as needed and as appropriate.
The guardian or conservator must report to the court on a yearly basis about the protected person’s health and health care and file an annual accounting of what has been done with the his or her money and how much money remains. The court supervision is intended to protect the incapacitated individual from mismanagement of their finances and ensure that the guardianship and/or conservatorship is still needed and maintained on an annual basis.
The relationship between the protected person and the guardian is often a close one and can continue for many years. The guardianship ends upon the death of the incapacitated individuals, the resignation or removal of the guardian, or in cases of temporary illness or incapacity, when a person recovers and is once again able to handle their own affairs and make health care decisions on their own.
If and when an elderly family member can no longer manage their own lives, guardianship and/or a conservatorship is a way to step in and care for them, if no prior estate planning has been done. It is preferable for an estate plan to be created and for powers of attorney and health care proxies be created, but in its absence, this is an option.
Reference: The Westerly Sun (Sep. 19, 2020) “Legal Corner: A guardian can be a helpful tool in cases of incapacity”