If you are dealing with a situation where a loved one can no longer safely make decisions for themselves, you are probably considering guardianship as an option. Situations like these can be tense, especially when deciding within a family who should be responsible for making decisions for your loved one’s well-being.
Understanding who should file for guardianship is essential for navigating the Massachusetts probate court system effectively. If you are trying to take this step, speaking with a Massachusetts guardianship attorney can help you better understand the legal ramifications and responsibilities of this role.
Understanding Guardianship and When It’s Necessary
Guardianship is a legal relationship created by the court when an individual, whether a minor or an incapacitated adult, lacks the ability to make or communicate informed decisions regarding their care. Under Massachusetts law, this process is governed by strict standards to ensure the individual’s rights are protected and their needs are met.
A legal guardian is granted the authority to make decisions for the individual, ranging from medical treatments to housing arrangements. The court only appoints a guardian when it is clear that no less restrictive alternatives exist to protect the individual’s civil liberties at all costs.
Legal Criteria for Filing for Guardianship
When you are looking at filing for guardianship, it is important to understand the legal criteria you need to successfully petition the court. First, the person filing must demonstrate that the respondent, or person in need of care, is incapacitated. For adults, this requires a clinical diagnosis of a condition, such as dementia, intellectual disability, or severe mental illness. This is needed to convince the court that the respondent is unable to process information or stay safe.
When someone files a petition with the court, specific documentation is required. You will need a Medical Certificate completed by a physician or licensed psychologist within 30 days of filing. A Clinical Team Report will be required for individuals with intellectual disabilities. A family law attorney can help make sure that the proper paperwork is filled out and filed promptly.
Who Commonly Files for Guardianship?
Families often debate over who should file for guardianship. If you have multiple family members or close friends interested in taking care of your loved one, it may become difficult to determine who is the most appropriate person to step forward.
Family Members
Most often, a spouse, adult child, or sibling petitions for guardianship. The court generally prefers family members because they are often the ones most familiar with the person’s values and wishes.
Non-Family Members
Close friends or long-term caregivers can also be an interested person eligible to file. If a family is estranged, unavailable, or unable to come forward, a non-family member may be the best advocate to manage the day-to-day guardianship of the person’s responsibilities.
State Agencies or Professionals
In cases where no suitable family or friends are available, the state or a professional guardian may be chosen. When a medical facility or nursing home identifies a patient who cannot safely be discharged and has no one to sign for their care, a state agency or professional may be the best option. This can also happen in cases where there is a significant conflict that cannot be resolved between interested parties.
Special Situations That May Influence Who Should File
There are some special circumstances that may influence who should file for the role of guardianship.
Guardianship of an Elderly Parent
As parents age, conditions like Alzheimer’s can make it impossible for them to manage their own safety. If a parent did not previously sign a Power of Attorney or Health Care Proxy, a child may need to seek guardianship to authorize a move into an assisted living facility.
Guardianship of a Minor
When parents are unable to care for a child due to illness, addiction, or incarceration, a family member or friend may step in to provide stability and make decisions for the child regarding education and medical care. Guardianship of a minor can be temporary, until the parent is once again fit to serve as a guardian, or until the child reaches the age of majority.
Guardianship for Adults With Disabilities
Parents of children with intellectual disabilities often file for guardianship as the child nears their 18th birthday. In Massachusetts, parents do not automatically remain guardians once a child reaches the age of majority, so an official legal filing is required to continue in this role.
Emergency or Temporary Guardianship
If someone is at risk of immediate and considerable harm, the court may appoint a temporary guardian for a 90-day period. For example, in a medical emergency, a patient may need life-saving surgery but cannot consent due to their condition. Minors may also be temporarily removed to the safety of a temporary guardian while a parent petitions for a restraining order in cases of domestic violence.
What the Court Considers When Deciding Who Should Be a Guardian
When you file with the court, the judge’s primary focus will be on the best interests of the incapacitated person. The probate court will review the proposed guardian’s criminal background, the relationship between the petitioner and the respondent, and any potential conflicts of interest.
In many cases, the court appoints a guardian ad litem (GAL). The GAL is a neutral third-party professional who investigates the situation and reports back to the judge on whether the proposed guardianship is necessary and if the petitioner is fit to serve.
When You Should Not File for Guardianship
Guardianship is a hefty responsibility, and it shouldn’t be used as a tool for controlling someone’s choices simply because you disagree with them. If a person is still capable of making informed decisions, even if you consider them poor choices, the court will likely deny the petition. If the primary issue is purely financial, a guardian of the estate, also known as a conservator, may be more appropriate to file for instead of a guardian of the person.
Alternatives to Filing for Guardianship
Before a court appoints a guardian, it must be satisfied that all alternatives have been considered. These may include:
- Health Care Proxy: If already signed, this document usually takes precedence.
- Durable Power of Attorney: Similarly, this document can serve as a power of attorney for financial and legal decisions.
- Supported Decision-Making: This is a less restrictive model where the individual makes their own choices with the assistance of a support team.
Make sure you have considered all these options before pursuing guardianship cases.
Steps to Take Before Filing for Guardianship
The first step in filing for guardianship should be considering all the legal options available. Consult with medical professionals, including the individual’s doctor, to confirm incapacity. Once that has been established, gather your family and any interested parties to establish support in your petition. Uncontested petitions move much faster and more smoothly through the court.
Once these factors have been established, consult with a family lawyer on the options available. You may consider full guardianship or a limited guardianship. Limited guardianship is typically favored in Massachusetts courts to preserve as much autonomy as possible for the individual.
How to File for Guardianship in Massachusetts
Begin the process by submitting a copy of the petition and the required medical certificates to the Probate and Family Court in the county where the incapacitated person resides. Once filed, you must notify all interested parties and give them a chance to respond. These parties should include the respondent themselves and the immediate family.
You will then attend the court hearing where a judge will review the evidence and the GAL’s report. If approved, the court will issue an order and letters of appointment.
Speak With a Massachusetts Guardianship Attorney for Guidance
Whether you are in the process of filing a petition for guardianship or just considering care options, contact us to schedule a free case consultation. We are ready to help you go through your specific choices and answer your questions.
