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February 3, 2014
How to Obtain Guardianship - An Overview

Tags: Resource Guide

By: Hillary J. Dunn, Esq., Fletcher Tilton PC
 

Understanding Guardianship

When a child turns 18 years old, in the eyes of the law, he/she is presumed capable of making informed decisions in all areas of his/her life, including decisions regarding education, health care, finances, and safety.  Once a child turns 18, parents no longer have authority to make decisions on behalf of their child or to have access to their child’s educational, medical, and other personal records unless they obtain Guardianship or the child knowingly and voluntarily provides authority to the parents.  Whether guardianship is appropriate for a particular individual will depend upon his/her level of need and ability to make informed decisions regarding health, education, career, and other personal matters.

It is not always necessary for a guardian to be appointed for a person with an Autism Spectrum Disorder or other developmental disorder.  For example, if an individual with ASD has the capacity to execute a health care proxy or power of attorney, then the family should consider whether or not these options or other alternatives to guardianship may be sufficient.  However, if a person is unable to receive and evaluate information or make decisions, then he/she will probably require guardianship.
 

The Guardianship Process - Getting Started

To begin the guardianship process, a petition must be filed with your local Probate Court.   Notice of the petition must be given to the person with a disability, his/her “heirs at law,” and other interested parties in order to give them an opportunity to object.   To serve as guardian, a person must be over 18.   While the court seeks to appoint the most appropriate person, certain people are given priority.  In most instances, the parents have priority of appointment as guardian.

When seeking guardianship of a person with an intellectual disability, the petitioner must also file a medical document called the Clinical Team Report (“CTR”).  The CTR must be completed by a physician, a licensed psychologist, and a licensed social worker.  Each clinician must conduct an examination of the individual to be placed under guardianship, and the examination must be done no more than 180 days prior to filing the petition. 

In cases not involving intellectual disability, the petitioner must file a Medical Certificate.  It may be completed by a physician, licensed psychologist, or a certified psychiatric nurse clinical specialist.  The Medical Certificate must be dated within 30 days of the filing of the petition and within 30 days of the hearing.  This means that a new examination and Medical Certificate may need to be completed prior to the permanent hearing. 
 

The Guardianship Hearing

At the guardianship hearing, the judge weighs the evidence regarding incapacity and decides whether or not to approve the guardianship.  Massachusetts law favors limited guardianships when appropriate.   Therefore, if a person lacks the ability to make decisions in some areas but is able to make decisions in other areas, the court will tailor the guardianship accordingly in the least restrictive manner. 

Once appointed, a Guardian handles many responsibilities, one of which is an ongoing reporting duty regarding the individual’s living arrangements, current condition, and future care.  A Guardian’s Care Plan/Report is due to the court within 60 days of appointment as Guardian.  An annual report is due every year on the anniversary of the date of appointment.


The Role of Guardian

A Guardian is required to act in the person’s best interest, consider his/her desires, and encourage the person to participate in decision-making whenever possible.  Other duties also include, among other things, arranging for everyday basic needs, safety, an appropriate living situation, educational and recreational needs, and what is referred to as ordinary medical treatment. 

An issue that may arise involves treatment with antipsychotic medication(s).  Such treatment is considered extraordinary and requires specific authorization from the court.  A guardianship that includes the authority to administer antipsychotic medication is often referred to as a Rogers Guardianship.  When seeking the authority to administer antipsychotic medication, the court will automatically appoint an attorney to represent the proposed incapacitated person and what he/she wants.  Other types of medical treatments that the court may consider extraordinary include, but are not limited to, abortion, sterilization, and electroconvulsive therapy.    


The Role of Conservator

A Guardian is appointed to make and manage a person’s personal decisions.  In some instances, a Conservator may also be appointed to manage an individual’s financial affairs.  Conservatorship is considered for persons who are unable to make informed financial decisions on their own and who receive income from sources other than government benefit checks.  The Guardian and Conservator can be the same person.  

One final point to consider is that certain government programs, such as Adult Family Care/Adult Foster Care (AFC) or the Personal Care Attendant (PCA) program prohibits legal Guardians from playing the role of paid caregiver.  In other words, for these programs, a Guardian or anyone legally responsible for the person to whom they are providing care is not authorized to become a paid provider.

  

For further information, contact Hillary J. Dunn, Esq. at (508) 532-3515 or hdunn@fletchertilton.com.   Ms. Dunn works in the Special Needs Practice Group at Fletcher Tilton PC.  She concentrates her practice in the areas of special education, guardianship, advocacy with adult human service agencies, and estate planning.

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