Guardian and Conservatorship

When a person is unable to care for him or herself, it may be necessary to have a guardian or conservator appointed by the court to handle their affairs.  A guardian has authority over an individual's personal and medical affairs, while a conservator has authority over financial affairs.

Guardianship and conservatorship are legal arrangements that place an individual under the care and supervision of a court appointed guardian or custodian.  Guardians may be appointed for protection of the person only.  A conservator must be appointed to protect property and business affairs of a person in need of protection.

A guardian is typically a family member, friend, or fiduciary appointed by the court.  A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property.  Additionally, a person may be placed under guardianship who is prone to fraud or undue external influence.

While guardianship does attempt to maintain the protected person’s independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual. 

Guardianship of the Person

A guardian may be appointed for an incapacitated person “who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical
health, safety, or selfcare, even with appropriate technological assistance.”

Guardianship of the person often relegates the following responsibilities to the appointed guardian:

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical treatment
  • Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • Making end-of-life decisions
  • Paying debts and other expenses
  • Maintaining the protected person’s autonomy as much as possible

The guardian may be required to report to the court about his or her activities on an annual basis.

Temporary Guardianship

While a petition for the appointment of a guardian is pending, if an incapacitated person has no guardian, and the Court finds that an emergency exists that will likely result in immediate and substantial harm to the health, safety or welfare of the person alleged to be incapacitated, and no other person appears to have authority to act in the circumstances, on appropriate motion, the Court may appoint a temporary guardian who may exercise only those specific powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the Court may order an appointment for a longer period to a date certain. The Court may for good cause shown extend the appointment for additional 90 day periods.

Full/Plenery Guardianship

A full/plenary guardianship generally removes from an incapacitated person all personal decisionmaking responsibility and authority. Under the current law, clinicians and the Court must now consider whether an incapacitated person’s legal rights can be preserved in specific areas and whether the guardianship can be limited or tailored accordingly.

Conservatorship of the Estate or Property

A conservator may be appointed for a person to be protected if “the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money.”

Conservatorship of the estate or property transfers the following responsibilities to the conservator:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets
  • Reporting to the court the estate’s status on a regular basis

Many guardianships and conservatorship are temporary arrangements, meant to protect an incapacitated individual or an individual in need of protection until he or she regains capacity.

Guardianships may also be used to protect the legal rights of a minor.  In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed.  Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated.  In most instances, parental approval is sought prior to any legal proceedings. 

Charles River Law Partners, LLC represents clients in Suffolk County, Middlesex County, Essex County, Norfolk County, Plymouth County, Bristol County, Worcester County, Hampden County, and Franklin County.
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