A Massachusetts Elder Law Attorneys on Guardianship Process

Every family at some point needs to address a situation where one of its members, either very old or very young, is unable to make important life decisions for him or herself. And while our office helps plan for these situations by providing a health care proxy and durable power of attorney with every Massachusetts estate plan, many families are not so fortunate. Without a health care proxy and power of attorney, the only option available to those needing medical and financial authority over a loved one is to petition for a guardian- or conservatorship.

The process for obtaining conservatorships and guardianships in Massachusetts has recently been overhauled for consistency with most other states in the nation (under the Uniform Probate Code or “UPC”). The effect of this overhaul was to narrow any such authority obtained, and to generally make this process a little more burdensome for the petitioner. And while the goal behind these changes aims to protect individual freedoms and independence, petitioning for the authority has never been more onerous a process.

At the Law Office of William Yates, our significant Estate and Medicaid planning practice has required us many times to seek out this authority on behalf of clients. And while the courts still struggle to iron out the wrinkles in implementing this process, we offer a clear cut checklist of the documents needed, along with a timeline that corresponds to the urgency of each individual situation. Don’t hesitate to call our office at the first moment you feel a loved one may need some oversight.

Guardianship in Massachusetts Under the New UPC

In an ordinary guardianship, the probate courts generally require that the person asking for the appointment (petitioner) file a “petition” with the necessary information and background. The court will then seek a medical evaluation determining the incapacitated person’s state of mind. Afterwards, the court will require the petitioner to provide notice to all interested parties in the proceeding. Then, after approximately 30 days, the petitioner may schedule a hearing. In the interim the court appoints an attorney to meet with, and represent the interests of the incapacitated person at the hearing.

Conservatorship in Massachusetts Under the New UPC

Whereas the guardianship is mainly a general position of protecting the incapacitated person’s interests, the conservatorship delves a lot more into the financial affairs of the respondent. And while earlier law allowed for both positions’ authority to be obtained under the same petition, the new UPC requires separate petitions for each. And so although the process for obtaining a conservatorship is much the same as the process for obtaining a guardianship, the two are divided in an effort to ensure that the incapacitated person keep as much autonomy as possible.

Steps You Should Take Immediately When Considering a Massachusetts Guardianship or Conservatorship

Because the process now takes a little longer as courts struggle with the new UPC, it is recommended that you begin your petition for guardianship or conservatorship as early as possible. If there is a valid emergency, you may file a guardianship in quicker fashion, but the courts do not often grant such authority. Check with us by calling 508-888-8100 or on our Contact Us page if you are looking for guidance in these areas.