Beyond The Will
Guardianship and Conservatorship: An Introduction to How We Make Decisions for Those Who Cannot Make Decisions for Themselves
November 15, 2019
Inevitably, circumstances arise in which a person is incapable of making decisions for themselves because they are too young, i.e. children, or because their ability to understand, process, or communicate information becomes impaired. In these circumstances, someone else must take on the authority and responsibility of making decisions for the incapacitated person. Unless the incapacitated person has planned for their incapacity (which will be discussed in another blog), they will need to have a Guardian and/or Conservator. These roles and the legal processes to implement them are rarely discussed in popular culture, but versions of them have been codified in various cultures since at least the 2nd century A.D.
Guardians make decisions regarding medical or personal care, while Conservators make financial decisions. These roles are distinct but may be filled by the same person, two different people, or, in some cases, multiple co-Guardians or co-Conservators, depending on the situation. In most cases, either a family member or a neutral professional will serve. Individuals serving as a Guardian or Conservator are court-appointed fiduciaries; their authority to act on behalf of the protected person (formerly known as a ward) derives entirely from their appointment by the court. State laws codify and define their respective powers and fiduciary responsibilities.
In Massachusetts, the laws governing guardianship and conservatorship are found in the General Laws, Chapter 190B, Section 5-101, and the following sections – commonly referred to as the Massachusetts Uniform Probate Code (“MUPC”). The portions of the MUPC relevant to guardianships and conservatorships went into effect on July 1, 2009. Although in place now for a little over a decade, a comprehensive understanding of the MUPC’s provisions and where they differ from prior procedural law is not universal among practitioners. But one example is that, under prior law, a single case could be filed seeking to establish a guardian over both the person and their estate, whereas the MUPC requires that separate petitions and docket numbers be established. New, distinct forms for guardianship and conservatorship petitions have made it nearly impossible to attempt an all-in-one filing. However, where a guardianship and conservatorship are “consolidated for hearing” some practitioners make the mistake of treating both matters as one case and, accordingly, file a single copy of their subsequent pleadings with both docket numbers. This approach can cause even agreed-upon filings to be misfiled, rejected by court staff, or cause other unnecessary delays and frustrations (to say nothing of costs). In cases where time is of the essence, such mistakes can have a significant impact. Ultimately, it is up to the individual, whether a lay person or counsel, to double-check their instincts against the MUPC itself.
Likewise, both lay persons and counsel should be cognizant of the variety of procedural authorities that guide guardianship and conservatorship matters. In a typical case, brought before the Probate and Family Court, procedure is governed at various points by the Massachusetts Rules of Civil Procedure (although is distinct in many respects), Supplemental Rules of the Probate and Family Court, Uniform Probate and Family Court Practices, and Standing Orders of the Probate and Family Court. The court’s currently effective procedural rules can all be found here.
This post is the first in a series that will seek to provide basic information on the processes of guardianship and conservatorship, in a manner that is equally accessible to lawyers and non-lawyers alike. In future posts, we will cover a variety of topics: types of incapacity and how to assess them, the process of appointing guardians and conservators, the general powers of guardians and conservators, special powers that require additional court processes, ongoing reporting obligations, alternatives to guardianship and conservatorship including health care proxies and durable powers of attorney, and other topics related to the numerous considerations and challenges that can arise in these proceedings. Guardianships and conservatorships for minors will also be addressed, but separately. These proceedings have distinct rules and considerations, due to the fact that a minor’s incapacity arises merely from youth and will be extinguished by reaching the age of majority; and, for the same reason, such cases are often intertwined with family law issues such as custody and parenting time/visitation.
 Sherman, Charles P., “Debt of the Modern Law of Guardianship to Roman Law” (1913), Faculty Scholarship Series, available at https://digitalcommons.law.yale.edu/fss_papers/4438 (last accessed November 13, 2019).
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