Beyond The Will, Client Compass

As previously discussed, guardianships and conservatorships involve making personal and financial decisions for persons who are unable to make decisions for themselves.  This sounds a lot like what can be accomplished by a health care proxy and power of attorney, so why is a court proceeding necessary?   This blog will flush out the overlap between a guardianship and health care proxy, and conservatorship and power of attorney; compare the authority of each; and why sometimes it makes sense to go to court to obtain a guardianship and conservatorship.

There is overlap between authority under a guardianship and a standard health care proxy, as well as under a conservatorship and a standard durable power of attorney.  With respect to a guardianship, under the governing statute (M.G.L. c. 190B, § 5-309), and unless limited by the court, “a guardian of an incapacitated person shall make decisions regarding the incapacitated person’s support, care, education, health, and welfare.”  A guardian must obtain court approval before placing the incapacitated person in a nursing home or consenting to treatment for which substituted judgment determination may be required (for example, antipsychotic medications).  For a standard health care proxy, these are generally the same powers provided to a health care agent except typically the health care agent has the power for nursing home placement and life-sustaining treatment.  Specifically, under the statute governing the authority of a health care proxy (M.G.L. c. 201D, § 5), which was not revoked when the Massachusetts Uniform Probate Code was enacted, “[a]n agent shall have the authority to make any and all health decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.”

To further complicate matters, under the governing Massachusetts statute, both a health care agent and a guardianship can co-exist at the same time, and the guardian cannot revoke a health care proxy without court authorization.  Specifically, the state (M.G.L. c. 190B, § 5-309(e)) states:  “[a] guardian, without authorization of the court, may not revoke a health care proxy, of which the incapacitated person is the principal.  If a health care proxy is in effect, absent an order of the court to the contrary, a health-care decision of the agent takes precedence over that of a guardian.”  This co-existence is ripe for conflicts if two different people are serving as health care agents and as guardians.

A conservator has similar broad powers as an attorney-in-fact under a standard durable power of attorney.  These powers include collecting assets, opening bank accounts, paying bills, continuing businesses, paying taxes, and employing professionals.  Notably, a conservator needs additional power to perform certain acts, such as to lease or sell property, as well to perform estate planning.  Unlike a guardianship, however, the conservator can revoke the power of attorney under M.G.L. c. 190B, § 5-503(a), without obtaining prior court approval.

With this backdrop comparing the different types of fiduciaries and their powers, why would one need a guardian and conservator?  In most cases, a health care proxy and durable power of attorney are sufficient.  These are cost-effective instruments that are drafted by a skilled estate planning attorney, and allow the appointed agent(s) to make medical and financial decisions when a person is unable.

There are situations, however, in which it is necessary to go to court to obtain a guardian and conservator.  The primary situation we face is when an incapacitated parent is being unduly influenced, isolated, and/or financially exploited, such as by an adult child or a caretaker.  The guardianship and conservatorship offer protections for the incapacitated person to ensure that they are personally and financially safe.  For instance, having a court-appointed guardianship and conservatorship ensures that the person does not execute any new instruments while incapacitated and unable to understand what they are signing.  If an incapacitated person is being unduly influenced, they could (and should not!) be brought to a new estate planner to execute a new health care proxy and power of attorney and to revoke the prior ones.  This raises serious issues with the validity of those instruments.  In such a situation, the petition for guardianship could include a prayer for relief asking the court to invalidate a health care proxy, as well as to override a decision of a health care agent or to remove the health care agent.  Such requested relief would resolve the issues involving the co-existence of a guardian and a health care agent.

Second, the court-appointed guardian and conservator have reporting requirements to the court, which we will discuss in a separate blog.  The court’s continuing involvement ensures that the protected person continually protected, as well as provides information to loved ones.

Third, and as mentioned above, there is a difference between a guardian and a health care agent’s authority for nursing home authority.  Especially in a case of a limited guardianship, where the person might have the capacity to revoke a health care proxy, it could make good sense to obtain the guardianship with additional court approval for placing the person in a nursing home.  This would ensure that the person could not refuse to go to the nursing home, potentially express anger towards the health care agent for trying to move them to a nursing home and revoke the health care proxy, thereby leaving the person at risk.

As you can see, many related issues arise in these types of cases, including fiduciary duties, what powers exist by statute and what powers need court approval, co-existence of fiduciary positions, contested appointments for guardianships and conservatorships, objections to the care or decision-making being made, and the protected person’s input and level of participation in the proceedings.  These cases are highly personal, as well as legally complex.  If you are facing a family situation involving a potentially incapacitated person, it is important to consult with a skilled attorney who can advise you on whether a guardianship and conservatorship makes sense in your unique situation.