Standards for Appointment and Duties of Guardians
Obtaining an appointment of guardianship over your loved one can be challenging. Although the standards for appointment of guardianship in Massachusetts appear straightforward, the appointment process can take months to complete.
This information will help walk you through the standards for appointing a guardian in Massachusetts, as well as the duties that the court will require of the guardian and the standard of care the court will impose on the guardian.Standard of Review of Potential Guardians in Massachusetts
In Massachusetts, the courts evaluate prospective guardians before appointment to ensure they can represent the incapacitated person well.
In general, any competent person who is 18 years old or older may qualify to be a guardian, although family members often petition to serve as guardians. If a court receives an application to appoint a guardian over an incapacitated person who has no family members, the court may appoint a lawyer or social worker to act as a guardian.
The guardian must pass an extensive background check before receiving an appointment. If the background check comes back with any causes for concern, the court will further investigate the matter to determine if the appointment of the proposed guardianship is in the incapacitated person’s best interests. The court cannot appoint a guardian if she is being investigated or has pending charges for assault or battery against the incapacitated person.Standards for Appointment of a Guardian in Massachusetts
A guardian is a person appointed to care for someone who can no longer care for herself. In Massachusetts, the Probate and Family Court have the legal authority to appoint the guardianship of an adult or minor.
A person must suffer a mental illness or physical condition and be diagnosed as incapacitated for an appointment of guardianship to occur. A minor who is unable to handle her affairs due to age or mental or physical incapacity may also be appointed a guardian.
The proposed guardian must file a petition for guardianship in the county in which the incapacitated person resides. There are no filing fees for guardianship petitions. There are fees for service of process and the posting of a bond. A proposed guardian can either petition for a temporary, limited guardianship appointment; or a general, long-term guardianship appointment. Contact our law office if you are unsure of the type of appointment you should choose.
You can get more information about legal guardianship in this more-detailed description about legal guardianship in Massachusetts.Duties and Standard of Care of Guardian for Minors
The duties of a guardian for a minor are similar to the powers and responsibilities of a parent. The guardian must provide for the child’s education, health, and welfare. The guardian will have the authority to make routine decisions concerning the minor’s day-to-day living activities and religious practices and must always act in the minor’s best interest and exercise reasonable care, diligence, and prudence. The court will continue to oversee and monitor the guardianship as long as it is active. Finally, the guardian must complete and file with the court an Annual Report of Guardian of Minor.Duties and Standard of Care of Guardian for Adults
Because guardianship of an adult generally occurs when a person is diagnosed with a serious mental condition, each appointment generally comes with unique duties spelled out in a decree and order issued by the court. In general, the primary concern of the court is for the incapacitated person to maintain autonomy over her rights and liberties to the fullest extent possible, so the court will generally require the guardian to make personal and medical decisions on behalf of the incapacitated person that the guardian believes are in the incapacitated person’s best interest.
Contact our law office for a confidential consultation regarding whether a guardianship is appropriate to help care for your loved ones.