Home Estate Planning and Probate estate planning Understanding Guardianship & Conservatorship in Massachusetts

Understanding Guardianship & Conservatorship in Massachusetts

muccilegal June 27, 2024

When someone becomes incapable of looking after their health and other aspects of their own life, such as their estate and finances, the Massachusetts Probate and Family court may appoint a responsible person or persons to look after their needs. This typically may happen if the person who has become incapacitated did not arrange for a legal representative to look after their needs before their mental or physical health deteriorated.

The differences between guardianship and conservatorship

There are two principal designations which may be used when the court appoints someone to look after someone else’s affairs. These are guardianship and conservatorship. Both guardians and conservators have similar roles in the way they are given the responsibility to manage another’s affairs, but there are also important distinctions between their roles as well.

The person who is given the role of guardianship is principally responsible for managing decisions that have to be made concerning the health and living conditions of the person who they have been appointed to look after. The guardian’s role is to ensure that the unique health needs of the person they are guardian for are met and to ensure that the person’s residential needs are met. Of course, financial decisions must be made on behalf of the person being cared for, but this then becomes the role of the conservatorship. The conservator administers the financial assets and estate of the person being cared for, and will have to coordinate with the guardian over the costs involved with the health and residential needs of the person being cared for as payments will have to be made.

In some cases, the person appointed to take the role of governorship may also be the person appointed to take the role of conservatorship, but the two roles are still kept separate.

Reasons why a court may appoint someone in the role of a governor or conservator

A court may appoint a guardian or conservator when there is no power of attorney

Someone whose mental or physical health is declining may circumvent the need for the court to intervene by appointing one or more legal representatives to take charge of their affairs once they become unable to make essential decisions themselves. A health care proxy may be appointed by the person to take care of their developing health needs. The health care proxy may be someone they know and trust who they feel they can rely on to look after their health needs, or it may be someone else who has been suggested by an attorney.

Rather like the court appointed conservator’s role, a Durable Power of Attorney could have been appointed by the person whose health is on the decline in advance of the point in time when they would no longer be able to make decisions about their finances themselves. A health care prosy and power of attorney may be a trusted and reliable family member or someone who is well known to the person appointing them or someone else altogether.

The advantage of a health care proxy and a power of attorney is that both may be known to the person who appoints them in advance giving some sense of trust that their needs will be looked after.

The court is typically only involved if the person’s mental and/or physical state of health deteriorates before anyone known to that person can be appointed. A family member, friend or attorney who has been representing the person may then petition the court to appoint a governor and conservator to look after the day to day and administrative needs of that person.

The court will normally consider the options before the appointment of a guardian and a conservator carefully. Neither person is legally allowed to profit from the role they have been appointed to, although they may be able to pay for legitimate expenses involved in managing their appointed roles.

The court may appoint a guardian or conservator as an emergency measure only and limit the rime they are appointed for. It may also appoint either role more permanently, until the death of the person whose affairs they are managing. For example, a guardian may be appointed by the court in the event that a minor has suffered the loss of their own parents and needs someone to look after their interests. This role is temporary as it typically ends when the young person reaches the age of 18, unless a more severe mental or physical disability prevents that person from being able to manage their own affairs, in a similar way to a senior.

Health status that may lead to the appointment of a guardian and/or conservator

The following circumstances may lead to a guardian and/or a conservator being appointed by the court:

  • a minor who has been abandoned or whose parents have died;
  • an adult with special needs;
  • an adult who has gone missing or cannot be reached;
  • someone who has gone into a coma;
  • severe cognitive decline associated with Alzheimer’s or dementia;
  • a serious mental or physical disability or illness that prevents the sufferer from making important decisions.

A conservator’s role in managing finances

As has already been mentioned, a conservator who has been appointed is not expected to profit in any way from the assets and/or estate of the person they have been appointed to administer. However, they may be paid a reasonable sum to do the job as conservator. Their conduct is normally carefully monitored by the court to ensure that there is no conflict of interest involved in the role. Conservators may be expected to do any of the following:

  • act as a fiduciary responsible for managing the incapacitated person’s property;
  • act in the best interests of the incapacitated person;
  • collect the incapacitated person’s benefits from the Social Security Administration (SSA) if the person had been receiving SSA benefits;
  • negotiate or enter into contracts;
  • make financial and legal decisions;
  • work with the Guardian on matters of health and living conditions where costs are involved;
  • manage the assets and income of the protected person;
  • pay bills.

The role of an estate planning attorney

If a loved one has become incapacitated due to declining mental or physical health and you are unsure of what you can do to help your elderly relative, it is advisable in the first instance to talk to an estate planning attorney who can provide legal advice and help with options that may include petitioning the court to appoint a guardian and / or a conservator.

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