Since Massachusetts reformed the state’s probate practice and procedures by adopting the Uniform Probate Code, the procedures for obtaining guardianship or conservatorship over a person who has become unable to handle their own affairs have changed to provide for enhanced court supervision in order to achieve increased protection of incapacitated individuals.
In addition to requiring annual reporting to the courts on the condition of the incapacitated person and the status of all assets, the new rules also provide for a detailed medical certificate (which can be downloaded here) that must be filled out by a physician who has examined the incapacitated person in order to demonstrate to the Court what that person may need a guardianship or conservatorship for and what they can still do on their own. The goal of these procedures is to maximize the personal determination and freedoms available to a person under a guardianship or conservatorship.
Guardianship and Conservatorship Defined
A guardianship is created when a person or institution is assigned by the court to take care of another person’s health care decisions, living situation and related issues because of a mental or physical incapacitation.
A conservatorship is created when a person or institution is assigned by the court to take care of another person’s property and finances because of a mental or physical incapacitation.
The new medical certificate is used by the courts to determine the scope of guardianship or conservatorship that is needed by an incapacitated person. For example, a person may be capable of making day-to-day living decisions but need help making important medical decisions. Likewise, a person may be able to handle small amounts of money but be unable to fully manage their assets and property.
Alternatives to Guardianship and Conservatorship
By requiring an extensive medical certificate, the courts are trying to ensure that people’s civil rights are protected and that they have an informed choice in how their affairs are handled. However, the new procedures also strongly support an individual’s right to nominate his or her own guardian and conservator by an advance directive. By planning ahead with health care proxies, durable powers of attorney and trusts, families and individuals can avoid the need for a guardianship or conservatorship even if their loved one becomes incapacitated. Court proceedings should always be the last resort, as they are public, costly, time consuming, stressful on the family, and put a judge in charge of making the decision about who should handle your affairs.
