Skylark Law & Mediation, PC

A Guardian is a person appointed by the court to make non-financial decisions for another person, such as personal welfare, medical, housing and educational decisions, in the same way that a parent can for their minor child.  Guardians may be appointed for minor children, via Guardianship of a Minor, and for incapacitated persons, via Guardianship of an Incapacitated Person. In either case, this is a guardianship for protection of the person only. In Massachusetts, Guardians do not have any power over the financial or business affairs of the Respondent. In order to protect the proper or business affairs of a respondent a Conservator is needed. 

The person who needs a conservator or guardian’s assistance is called the Respondent. 

A Conservator may be appointed by the Court for the protection of a respondent if they are unable to “manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person’s support and that protection is necessary or desirable to obtain or provide money.”

This includes if the person is incapacitated or a minor and has substantial assets that need protection and management.

For a Conservatorship of an incapacitated person a Medical Certificate must be filed. A Medical Certificate is a lengthy form that must be completed by a registered physician, licensed psychologist or certified psychiatric nurse clinical specialist. In addition, the Medical Certificate must be completed within 30 days of any court hearing. This means if you have multiple court hearings more than 30 days apart you will need to obtain an up to date Medical Certificate for each hearing. 

A court will appoint a conservator if it finds that an individual is “unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive or evaluate information or make or communicate decisions… [or] the person has property that will be wasted or dissipated unless management is provided or money is needed for the suport, case, or welfare of the person entitled to the person’s support and that protection is necessary or desirable to obtain or provide money.” G.L. c. 190B, § 5-401(c)(1)-(2). 

A Guardian may be appointed by the Court for the protection of a Respondent “who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” This is accomplished by the filing of a Petition for Appointment of Guardian for Incapacitated Person Pursuant to G.L. c. 190B, 5-303.

This type of Petition requires the filing of a Medical Certificate must be filed. A Medical Certificate is a lengthy form that must be completed by a registered physician, licensed psychologist or certified psychiatric nurse clinical specialist. In addition, the Medical Certificate must be completed within 30 days of any court hearing. This means if you have multiple court hearings more than 30 days apart you will need to obtain an up to date Medical Certificate for each hearing. 

In some cases a person may need the immediate assistance of a guardian due to some emergency. In this instance, a Petition for Guardianship must still be filed but while it is pending, you can request that the court appoint a Guardian temporarily.

If no current Guardian exists and the Court agrees that there is an emergency which will lead to “immediate and substantial harm to the health, safety or welfare of the” proposed respondent, then the Court upon the filing of a Motion may appoint a temporary guardian. The Temporary Guardian order may limit the powers of the guardianship to only those needed to resolve the emergency, and will be limited to 90 days. At the end of the 90 days there will be a hearing at which the Court can extend the temporary guardianship if necessary.

A Petition for Guardianship is essentially a request for a permanent guardianship. Permanent here is not the same as its usual definition, because a permanent guardianship does not mean that it exists forever. A permanent guardianship simply means that the Guardianship case has gone to Judgment and no further court hearings will occur unless there is a change in circumstances. This is different from a Temporary Guardianship which requires returning to court at least every 90 days. 

In short, a limited guardianship is anything with less powers than a full guardianship. Courts will define what that means depending on the particular respondent, and can limit the powers as little or as much as are necessary for that individual. The purpose of a limited guardianship is to allow the court to address a specific area (or areas) of an individual’s incapacity and tailor the guardianship decree to the individual’s specific circumstances.

Courts are reluctant to remove an individual’s liberty more than the extent that is absolutely necessary to protect the individual from harm. If you believe a limited guardianship is not sufficient then you will have to explain why you believe that to the court. For further explanation of limited gaurdianships read this article. 

For any person under the age of 18, a Guardian is needed to make decisions about the minor child’s life. The child’s legal parent or parents usually make these decisions but if the parents are unavailable or unfit, the Court can appoint a Guardian or Guardians for the minor child. This is accomplished by the filing of a Petition for Appointment of Guardian of Minor.

Parents can assent to the appointment of a guardian by completing a Notarized Waiver and Consent to Petition for Guardianship of a Minor. If one or both of the parents do not agree with the appointment of a Guardian, then they must be given notice of any hearing on the Guardianship petition so they have the opportunity to be heard by the Court. The Court explains how to give Notice in this article.

If a child is over the age of 14 they too must be given notice and can assent to the appointment of a guardian by completing a Notarized and Verified Consent or Nomination by Minor. 

If one or both of the parents do not agree with the appointment of a Guardian or if you cannot find them, they still must be given notice of any hearing on the Guardianship petition so they have the opportunity to be heard by the Court. The Court explains how to give Notice in this article.

If you do not know the address of a parent, the Court will provide you with information on how to publish notice in the newspaper. 

Guardians of minors are entitled to child support from the legal parents. Child Support is paid for the support of the children. Child Support is calculated using a formula called the Massachusetts Child Support Guidelines. The formula is presumptive, and Judges can only vary from the formula in specific circumstances. You should consult an attorney to discuss what facts in your case might warrant a variation from the formula.

To view the formula and calculate your Child Support click here.

Pursuant to the Massachusetts Child Support Guidelines,”the income of a non-parent guardian shall not be considered for purposes of calculating a child support.” This means when completing the Child Support Worksheet the Recipient’s income should be $0 even if the guardian has income. 

A Caregiver Authorization is an alternative to going to court for a guardianship of a minor. It is a form that allows a parent to give a Caregiver the power to make medical and education decisions for a child. A Caregiver is someone the child lives with who is not a parent.

A Caregiver Authorization is different from a Guardianship in a few major ways:

1. It does not give the Caregiver custody of the child, only the right to make decisions.

2. It does not take away any powers from the parents, and the parents retain final decision making authority.

3. A Caregiver Authorization can be revoked by a parent via letter to the caregiver.

A Caregiver Authorization is good for two years or until a parent revokes it.

For more information regarding why you would use a Caregiver Authorization and how to complete it read the Massachusetts Caregiver Instructions provided by the Court. Click here to obtain the Caregiver Authorization Form.