PROTECTING THE PERSON AND HIS OR HER OWN PROPERTY
Absent a valid power of attorney and health care proxy, in Massachusetts, a person lacking the capacity to manage his or her health care and finances requires the appointment of a guardian and conservator to act on his or her behalf. Like the Probate of an estate, it is a public process with procedural entanglements that take time to unravel. Essentially the individual seeking to be appointed guardian and/or conservator (which are two separate actions) is required to demonstrate to the Court that the person cannot care for himself or herself (with regard to making medical decisions or managing finances). This is accomplished by providing the Court with a detailed account of the person's capacity and resulting limitations. Once the guardianship and conservatorship appointment is made, the Court intervention does not end there. In fact, it continues for as long as the person is alive or until the appointment is modified, revoked, or otherwise terminated. During the length of the appointment, mandatory reporting to the Court, on the person's health and financial status, is required.
Setting up your estate plan, which includes a durable power of attorney and health care proxy, can eliminate the need for your family to ever have to go through the guardianship and/or conservatorship process to protect you. Put another way, setting up an estate plan ensures that your privacy is preserved if you should ever need assistance with medical or financial decisions due to disability or incapacity.
Guardianship v. Conservatorship
Guardians may be appointed for protection of the person only. A conservator must be appointed to protect property and business affairs of a person in need of protection.
A guardian may be appointed for an incapacitated person "who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."
A conservator may be appointed for a person to be protected if "the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person's support and that the protection is necessary or desirable to obtain or provide money."
Note the difference in terminology. Guardians are appointed for incapacitated persons, and conservators are appointed for persons to be protected.
Roles & Responsibilities of the Guardian and Conservator
LIMITED GUARDIANSHIP: All too often plenary or full guardianship appointments are made when a person's incapacities are limited in scope and the individual displays only some areas of diminished functionality. The Medical Certificate form requires information which will highlight functional capacities and incapacities and promote the creation of limited guardianships. The concept of limited guardianship allows the Court to address specific areas of incapacity and tailor guardianship decrees (letters) to meet an individual's unique circumstances. Individuals may be competent for one purpose or not competent for another. For example, if appropriate, a guardianship may be limited or apply only to medical treatment decisions. Orders curtailing or removing an individual's liberty should be made only to the extent absolutely necessary to protect the individual from harm.
LIMITED CONSERVATORSHIP AND PROTECTIVE ORDERS: Similarly, the concept of conservatorship includes both limited and unlimited conservatorships. A conservator should be appointed only when necessary, and then with only those powers that are necessitated by the individual's actual limitations. For example, if appropriate, a conservatorship may be limited or apply only to investments or real estate and leave to the protected person the ability to receive pension income and pay for daily or monthly expenses.
In addition, it may be the case that a conservatorship is not necessary at all but that a narrowly tailored 'protective order' will suffice to protect an individual's assets/property. For example, the Court, without appointing a conservator, may authorize, direct or ratify any contract, trust, or other transaction relating to the protected person's property and business affairs if the Court determines that the transaction is in the best interests of the protected person.
TEMPORARY GUARDIANSHIP: While a petition for the appointment of a guardian is pending, if an incapacitated person has no guardian, and the Court finds that an emergency exists that will likely result in immediate and substantial harm to the health, safety or welfare of the person alleged to be incapacitated, and no other person appears to have authority to act in the circumstances, on appropriate motion, the Court may appoint a temporary guardian who may exercise only those specific powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the Court may order an appointment for a longer period to a date certain. The Court may for good cause shown extend the appointment for additional 90 day periods.
TEMPORARY CONSERVATORSHIP: While a petition for the appointment of a conservator is pending, if a person to be protected has no conservator, and the Court finds that an immediate and/or urgent situation exists that will likely result in substantial harm to the property, income or entitlements of the person to be protected or those entitled to the person's support, and no other person appears to have authority to act in the circumstances, on appropriate motion, the Court may appoint a temporary conservator who may exercise only those specific powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the Court may order an appointment for a longer period to a date certain. The Court may for good cause shown extend the appointment for additional 90 day periods.
FULL/PLENARY GUARDIANSHIP: A full/plenary guardianship generally removes from an incapacitated person all personal decision-making responsibility and authority. Under the current law, clinicians and the Court must now consider whether an incapacitated person's legal rights can be preserved in specific areas and whether the guardianship can be limited or tailored accordingly. See discussion of Limited Guardianship above.
FULL/PLENARY CONSERVATORSHIP: A full/plenary conservatorship generally removes from a person to be protected all control over his or her assets. Under current law, the Court must now consider if a conservatorship can be limited which means that the Court can preserve legal rights in specific areas. See discussion of Limited Conservatorship and Protective Orders above.
MEDICAL CERTIFICATE: In guardianship cases involving incapacitated persons and in conservatorship cases involving persons to be protected, a Medical Certificate must be filed. For cases involving mentally retarded persons, see below. A Medical Certificate must be dated within 30 days of the filing of the petition. In addition, a Medical Certificate must be dated and the capacity/competency examination must take place within 30 days prior to the hearing. Thus, it is possible that a new Medical Certificate might have to be procured prior to the permanent hearing. A Medical Certificate may be completed by a physician or licensed psychologist or a certified psychiatric nurse clinical specialist.
CLINICAL TEAM REPORT: For mentally retarded persons, a Clinical Team Report (CTR) must be filed. A Clinical Team Report must be dated within 180 days of the filing of the petition. A Clinical Team Report must be completed by a physician, a licensed psychologist, and a social worker, each of whom is experienced in the evaluation of the mentally retarded persons.