For some members of our society, legal protection may be necessary even in adulthood. These individuals may have been injured in an accident, suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established.
Guardians, Conservators and Protected Persons
Guardianship and conservatorship are legal arrangements that place an individual, also known as a ward or protected person, under the supervision of a guardian or a conservator. Under Massachusetts law, guardians and conservators each serve a separate and distinct role. A guardian oversees “the person” his or herself; and a conservator oversees “the property” of a protected person.
A guardian or conservator 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 who is prone to fraud or undue external influence may be placed under guardianship or conservatorship.
While guardianship and conservatorship attempt to maintain the protected person’s independence, these methods should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
Appointment of a guardian or conservator can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
To safeguard the protected person’s right to due process, he or she may be entitled to notice of, and ability to attend all legal proceedings related to guardianship or conservatorship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.
Guardianship of the Person
Guardianship of the person often relegates the following responsibilities to the appointed guardian:
- Determining and maintaining residence
- Providing informed consent to and supervising medial 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.
Conservatorship of the Estate or Property
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 are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.
Guardianship of Minors
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.