NACDA 2017
Top One percent NADC
Fellow 2018 NADC
Premier Dui
Expertise 2016
Super Lawyers
10 Best Attorney 2017
10 Best Attorney
10 Best 2 years
Avvo award 10 Family
Avvo award 10 Criminal Defense
Avvo Rating Superb
Avvo award 2019 Criminal Defense
Avvo award 2016 Family
Avvo award 2017
Avvo award 10
Avvo award 5 stars
Avvo award 2018
Avvo award 2019
Lawyers of Distinction 2018

Determining Competency in Guardianship Matters

In Massachusetts guardianship matters, competency is generally determined by the court. If the court determines that a minor’s or incapacitated person’s safety, welfare, and personal health is at risk, it will appoint a guardian to care for that person.

With minors, a guardian is appointed over a minor when her parents are deemed to be unfit or unavailable. With an incapacitated adult, a guardian is appointed when the court determines the adult is incompetent to make reasonable health related decisions for herself or properly handle her financial affairs due to a mental or physical disability.

How Competency is Determined in Massachusetts

Under Massachusetts laws, when a person turns eighteen-years-old, she is an adult and presumed to be mentally competent from a legal perspective. See Howe v. Howe, 99 Mass. 88, 98–99 (1868). Determining competency in guardianship matters, thus, requires the moving party to overcome that legal presumption by showing that the proposed protected person is incapacitated or that a minor’s parents are incapacitated in such a way that the proposed protected person is incapable of making informed decisions regarding health, safety, and her general welfare for themselves or by their parents. See Guardianship of John Roe, 411 Mass. 666 (1992); G.L. c. 109B, § 1-109.

Absent a showing of evidence, state law only allows an adult to decide health related matters on behalf of another under the following circumstances:

  1. In a life-threatening situation in which a person is unconscious or non-responsive and unable to provide consent to life-saving medical treatment. The harm from failing to treat a person must be imminent and the life-saving procedures must outweigh the risk posed.
  2. A person may be restrained when she places the lives of others at risk or serious physical injury.
  3. When a person presumed to be incompetent by treating physicians refuses to take medication. Such refusal must result in immediate substantial harm to the person for medicine to be administered to stabilize her.
  4. If a person, while competent, consented for another person to act on their behalf through a power of attorney or health care proxy.

The moving party must prove to the court that the proposed protected person or parent has a clinically diagnosed condition. The condition must result in her inability to receive or evaluate information and communicate decisions properly. The lack of reasoning and communication must impact her ability to make reasonable health, safety, and general welfare decisions to be deemed incompetent.

When determining incompetency, the court will examine the process as to which a person comes to a decision and not the decision itself. Health care professionals often evaluate the following four factors or abilities when accessing a person’s level of competency:

  1. Comprehension. The court will examine whether the allegedly incompetent person is able to comprehend information pertinent to the decision to be made. For example, does the person understand the underlying illness she has been diagnosed with? Does she understand the different treatment options? Does she understand the potential side effects that may occur?
  2. Appreciation. The court will examine whether the allegedly incompetent person appreciates the relevance of information provided to her regarding her medical condition. Has she acknowledged her condition? Does she fully appreciate the consequences of not obtaining treatment?
  3. Reasoning. The court will examine whether a person is able to use pertinent information to make reasonable decisions. Is the person able to effectively communicate her thought process and provide a logical reason for her decisions?
  4. Consistency. The court will examine a person’s ability to maintain and communicate a consistent decision.

The degree of incompetency must be examined on a case-by-case basis. The medical review of the proposed protected person must fully detail their different competency levels. Additionally, the moving party must submit medical information regarding the capacity of the allegedly incompetent person including, in cases where a full guardianship is sought, a statement by the treating physician about why a limited guardianship may not be appropriate in comparison to a full guardianship.

Obtaining guardianship over an incapacitated person is not easy, however an experienced attorney can guide you through each step of the legal process to help you put your best case before the court in order to attempt to get the best help for your loved ones.

Contact Us

Fill out the contact form or call us at (704) 897-7533 to schedule your initial consultation.

Leave Us a Message