Kathy L. McNair, Esq.
Guardianship & Conservatorship: Helping those most in need.
It is hard to watch a loved one that was once full of strength, struggle to handle the most basic tasks. You know they need help, but they may be refusing it. If your loved one is no longer able to make decisions, a Guardianship or Conservatorship may be necessary. In many cases, this may be the only way that you will be able to make sure that your loved one will be safe and taken care of.
As Boston Elder Law Attorneys, we frequently handle Guardianship and Conservatorship cases. Often we are trying to help elderly individuals with Alzheimer's or Dementia. However, mental illness, developmental disabilites, physical disabilities, and accidents, can affect people of all ages.
Once a person reaches the age of 18, they are considered to be an adult, capable of making decisons. If you have a disabled child, you will need to obtain Guardianship and/or Conservatorship once they reach 18, if you still wish to make decisions for your child. One of the first Guardianship cases that I worked on, involved a young woman with Down's syndrome. She needed to have some dental work done, but the dentist refused to do the work without a Guardianship in place. Her parents were shocked that they were not able to make this decision for her. After obtaining Guardianship, they were authorized to make decisions on her behalf.
What is Guardianship?
Guardianship is appropriate when impaired judgment or capacity poses a threat to a person's welfare. Guardianship is a legal relationship, giving one person, the guardian, the power to make personal decisions for another. A guardian may be appointed when the court determines that an individual is unable to care for himself or herself by reason of mental illness, mental retardation or physical incapacity.
What is Conservatorship?
Conservatorship is necessary when a person is no longer able to manage their financial affairs. Conservatorship is a legal relationship, giving one person, the conservator, the power to make financial decisions for another. A conservator may be appointed when a probate court determines that an individual is unable to manage his or her property by reason of mental illness, mental weakness, developmental disabilities or physical incapacity.
How does the process work?
In Massachusetts, a petition is filed with the probate court, requesting the appointment of a guardian or conservator. We must also include a medical evaluation by a licensed physician, along with the petition, explaining the person's condition and need for guardianship. The court requires that we notify the individual and his family that the petition has been filed. They will have a chance to object. Ultimately, a judge will decide whether the Guardianship and/or Conservatorship is appropriate.
How long does it take?
It depends on the circumstances. If a true emergency exists, we can usually obtain a temporary Guardianship and/or Conservatorship quickly, within a few days. If the circumstances are less urgent, it will usually takes approximately six to ten weeks. If the case becomes contested or there are more complilcated issues, it may take longer.
What are the alternatives to Guardianship and Conservatorship?
For individuals that planned in advance and have a valid health care proxy and power of attorney, a Guardianship and/or Conservatorship is usually not necessary. If your loved one is still able to make decisions for himself or herself, then it is not too late to execute a health care proxy and power of attorney.
Sometimes the named health care proxy or power of attorney is not suitable to serve and Guardianship and/or Conservatorship may become necessary to appoint a suitable person.
What is the first step?
Navigating your way through the probate court to obtain a Guardianship and/or Conservatorship can be confusing and frustrating. It is best to hire an attorney to assist you with the process. At Senior Solutions, our attorneys are in court several times per week on Guardianship and Conservatorship cases. Our focus is on helping your loved one get the help they need as quickly as possible. We are also here to advise you with issues regarding estate planning, Medicaid/ MassHealth planning, and Special Needs Trusts. Please call our office at 617-489-5900 to set up an initial consultation.
Senior Solutions is an Elder Law and Estate Planning Law Firm serving the Boston, Massachusetts area. We meet with clients in either our Belmont or Hingham offices. www.seniorsolutionsinfo.com 617-489-5900