Massachusetts Probate
ADULT GUARDIANSHIP OF AN INCAPACITATED PERSON
6 THINGS TO PUT ON YOUR “TO-DO LIST”
You’ve noticed that your aging parent or other loved one is losing their ability to think and understand things clearly. It may start out with subtle lapses in memory – being forgetful about events or bits of personal history – but it continues to worsen. You’re not sure what to do, but you go ahead and help them make an appointment for a medical evaluation. Then you receive the devastating news. It’s Alzheimer’s disease, or another form of dementia, there is no cure, it’s progressive, and it’s going to get worse over time.
Perhaps your family member has suffered a traumatic medical event – a stroke or brain injury – that causes them sudden and immediate incapacity or maybe your loved one is dealing with some form of debilitating mental illness.
In circumstances such as these and in the absence of a valid health care proxy, you may be faced with the prospect of seeking the appointment of a legal guardian from the Court. Adult Guardianship is a legal process that gives the guardian authority to take care of and make decisions for an incapacitated person 18 years or older. An incapacitated person is someone who has a clinically diagnosed condition, such as Alzheimer’s disease, stroke, brain injury, or mental illness, that results in an inability to receive and evaluate information or to make or communicate decisions to such an extent that the individual is left unable to meet essential requirements for health, safety, or self-care.
What should you do next? Here are six helpful tips from Gemma Law Office, PC to put on every prospective Guardian’s “To-Do List:”
DO consult with a qualified attorney. An experienced attorney will work with you to tailor your guardianship petition to align with the specific circumstances and needs of the incapacitated loved one. This includes limiting the guardianship to allow the incapacitated person to retain as many rights as they are able to in the circumstances. Doing so will ensure that you are actually asking the Court for all of the powers and authority required to meet the incapacitated person’s needs at the time the petition is filed. While guardians have the authority to make many medical decisions, they must seek specific authority for actions such as administering anti-psychotic medication or committing the incapacitated person to a mental health or nursing home facility. Sometimes, even after an initial Decree and Order appointing a guardian is issued by the Court, additional authority is needed to help an incapacitated person. In that case, a further petition to expand the powers of a guardian will be necessary. By working with a qualified attorney, you will receive the help you need to navigate an often stressful, if not emergency, situation.
DO consider who is eligible to apply to be a guardian. Any person may to seek become a guardian if they are at least 18 years old and live in the United States. The prospective guardian does not need to be a family member of the incapacitated person nor do they have to have any special medical skill or expertise.
You should keep in mind that the Court does give “priority” to certain persons, including:
- A person nominated as guardian in the incapacitated person’s durable power of attorney;
- The spouse of the incapacitated person or a person nominated by will of a deceased spouse;
- A person nominated by will of a parent for an unmarried incapacitated adult child; and
- Any person the court deems suitable and appropriate.
If two or more people seeking to become a guardian have equal priority, the court will select the one deemed best suited to serve. Additionally, if the Court finds it to be in the best interests of the incapacitated person, they can skip over a person with higher priority and select a person with lower priority or a person with no priority at all.
The Court will perform a background check on the proposed guardian to make sure they have not been involved in a criminal matter that would preclude them from serving as a guardian. The Court cannot appoint any person who is currently being investigated for, or has charges pending against them, for causing physical harm and/or neglecting the incapacitated person. The Court can appoint two people to serve as co-guardians. If there is no family member available and willing to serve, the petitioner may ask the Court to appoint a lawyer or a professional guardianship organization as the guardian.
DO consider whether you are well-suited for the role of guardian. Being a guardian is a position of great responsibility. A guardian is a “fiduciary” role. That means that the guardian must act in the best interests of the incapacitated person, giving consideration to the incapacitated person’s expressed desires and personal values. Guardians can be given limited or broad authority depending upon the Court’s evaluation of the individual’s abilities and needs. A Guardian only acts as necessitated by the incapacitated person’s limitations, encouraging him/her to the extent possible to participate in decisions, to act on his/her own behalf, and to develop or regain capacity.
DO make sure to familiarize yourself with the responsibilities available to a court-appointed guardian. Some of the duties that a guardian may be authorized to perform include:
- Securing safe, healthy, and suitable living arrangements;
- Providing for basic needs, care, and safety;
- Scheduling and attending doctor visits and medical appointments;
- Making medical care decisions and arranging for on-going treatment;
- Arranging for suitable social/recreational activities; and
- Applying for social security, Medicare, health insurance benefits, and other applicable benefits.
DO make an appointment for the incapacitated person to see their treating doctor or clinician if it is possible for you to do so. As part of the guardianship petition, the submission of a Medical Certificate form completed by the incapacitated person’s treating doctor, clinician or other qualified health professional is required. The Medical Certificate will be used by the Court to determine incapacity, appropriate limitations to a guardianship, and even whether to appoint a guardian. The Medical Certificate is only valid for 30 days from the date of the most recent examination reflected in the document. To avoid unnecessary delays, it may be wise to schedule an appointment for a current medical evaluation with the treating doctor or clinician as soon as possible and bring the probate medical form with you.
DO make sure that once appointed, you understand the court reporting requirements that a guardian must comply with, including:
- Initial 60-day and Annual Guardian Care Plan Reports, detailing the incapacitated person’s current physical and medical condition, living arrangements, and plans for future care; and
- Annual Rogers Review (for those guardians who are also Rogers monitors with authority regarding the administration of anti-psychotic mediations). Beginning one year after the guardian’s appointment, there is a process the court utilizes to review and extend the treatment plan each year. If no one disagrees or objects, the Court conducts the review administratively, or without a hearing.
GEMMA LAW OFFICE, PC
Attorney Anthony Gemma is an experienced probate attorney who has assisted numerous clients through the guardianship and conservatorship process. Get the help you need today to take care of your incapacitated family member or other loved one by hiring Gemma Law Office, PC. Call Gemma Law Office, PC at (781) 380-8183 or email us now at anthony@gemmalawoffice.com to schedule your free consultation.
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