Guardianship

How and Why a Legal Guardian is Appointed in Massachusetts

In Massachusetts, a legal guardian may be established over a person that is a minor, mentally incompetent, disabled, or is suffering from severe dementia. A guardian is appointed by a Massachusetts Probate and Family Court to manage the financial and/or medical and personal affairs of an individual - often referred to as the "ward."  As a court-supervised process, it is a public proceeding. Once appointed there are various duties imposed on the guardian to not only oversee the ward's care, but to also account for the individual’s property  in regular reports to the court.  If the individual requires admittance to a facility and/or the administration of antipsychotic medication, specific authorization from the court may be required. In Massachusetts, this separate authorization is commonly referred to as a Roger’s guardianship.

Serious Responsibility for a Legal Guardian

The person who is appointed guardian, is not often aware of the awesome responsibility that accompanies the appointment. This is because depending on the powers granted to the guardian, the individual  or ward may be rendered powerless over his or her personal needs, medical treatment and/or property. In Massachusetts, the probate and family court has the power to consent to the appointment of the guardian, who then gives bond, files an inventory and appraisal of the property and is accountable to the court that appointed him or her as guardian.

Guardianship for Minors in the Event of Death or Incapacity

Nominating a suitable person to care for your children if you become incapacitated or at death can be a difficult decision.  It is also important to name alternate guardians, in the event your initial choice is not available or becomes unsuitable.  While the court gives great consideration to the person you nominate to serve as guardian, it ultimately makes its decision based upon the “best interest" your child.  Since no one can truly be replaced, for some this decision is more about making it clear who a parent does not want to care for a minor child.  Remember, a Last Will and Testament becomes effective upon death, so the nomination of someone to act as guardian for your minor children in your Last Will and Testament does not become effective until you die.  In the event you need someone to serve as a guardian for your minor children while you are alive, Massachusetts allows parents to nominate a guardian on a temporary or emergency basis.

Guardianship for Minors to Receive Property/Inheritance

Is your child or grandchild a beneficiary of your estate?  Making a bequest to a child in a last will and testament or naming a child as a beneficiary of a life insurance policy, individual retirement account (IRA) or 401(k) may have unintended consequences and costs.  A guardianship of a minor’s estate or property may need to be established for a minor or other individual who lacks the capacity to receive an inheritance.  Depending upon the amount that is left to the minor, a guardianship may be required even though the minor is being cared for by a parent. It is very common that an insurance company holding the proceeds of a life insurance policy may require the establishment of a guardianship over a minor before the company releases the money. 

Alternatives to Guardianship – Power of Attorney/Health Care Proxy/Trust

It is preferable that a person make known his or her own wishes in advance, including who should manage a person's property and care for their personal needs. While in some instances a guardianship may become necessary despite proper planning, a well-drafted durable power of attorney, health care proxy, living will and even a property funded trust will often allow one's personal and financial affairs to be managed without the need for a guardianship.  These documents also avoid the need for the accompanying court supervision, potential litigation, and responsibilities imposed upon the guardian-- who is often a family member.  Read More on these ways to avoid the need for a guardianship .

To the extent that you are merely managing a benefit paid by the Social Security Administration, another alternative to establishing a guardianship is to serve as the representative payee for the person. This status is approved by the Social Security Administration, not the court, and obtaining this status, will not allow a representative payee to control other property of the individual.

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