GUARDIANSHIP OF AN ADULT IN MASSACHUSETTS

A guardianship is a legal relationship in which the court appoints a person (the guardian) to care for another, often called the “incapacitated person.” A guardian may be appointed for a minor when the parents are deceased, unfit or incapacitated, or for an incapacitated adult. A guardian must be at least 18 years old and does not need to be related to the incapacitated person.

The types of decisions a guardian can make depends on the guardianship order. If the guardianship is general, the Incapacitated Person no longer has the authority to make decisions about their own healthcare, support, education and welfare. A limited guardianship, however, may allow the Incapacitated Person to participate in decision making to the extent they are able. A limited guardianship can be limited to certain decisions, such as medical decisions, or decisions about where the person will live, and the incapacitated person retains decision making power in all other areas not included in the guardianship. Under Massachusetts law, all guardianship should be limited to the extent possible.

A guardian is required to consider the incapacitated person’s desires and personal values in decision-making. The guardian is also required to help the adult to develop or gain the capacity to manage her own personal affairs. The authority of a guardian differs from a conservator in that a conservator makes legal decisions about a person’s property and financial matters. Sometimes an incapacitated person will have both a guardian and a conservator but this is not true in every situation. The guardian and conservator can be the same person but that is not a requirement.

Sometimes a guardianship is the right choice. However, there may be less restrictive options for the incapacitated person that could be explored. Some less restrictive options include Advance Directives – Health Care Proxy and/or Durable Power of Attorney, Supported Decision Making, as well as Trusts to name a few.

Have questions or concerns about whether or not a Guardianship is the right option for a loved one? Contact us to discuss further:

E.M. Curran Legal LLC

10 Tower Office Park
Suite 314
Woburn, MA 01801
Phone: 781-933-1542
Fax: 781-933-1549

ellen@emcurranlegal.com

5 REASONS WHY YOU SHOULD HAVE A DURABLE POWER OF ATTORNEY

A Durable Power of Attorney is a document in which you appoint an “Attorney-in-Fact also sometimes called an agent” to do anything on your behalf that you, the “principal” could do for yourself. The Attorney-in-Fact, in effect, stands in your shoes and acts for you on financial, business and other matters.

First Reason….

We cannot predict the future, we do not know what crisis might come our way that might cause us to be temporarily incapacitated.  By having a properly executed Durable Power of Attorney in your well-thought-out estate plan, your Attorney-in-Fact can step in handle your matters on your behalf so there is little interruption and/or impact on your financial and business matters during this period.

Second Reason…

You control who steps in to make the decisions on your behalf during your period of incapacity instead of a court. Your Attorney-in-Fact can be any competent adult that you trust. If you do not have a properly executed Durable Power of Attorney, your family will need to go to the local Probate Court and ask the Court to appointed whomever the Court thinks is appropriate to “step into” your shoes. The Court’s choice may not be your choice.

Third Reason…

Conversations about one’s death are hard to have with loved ones. It is important that you have an open and honest conversation with your loved ones so that they are clear on what your wishes and desires are in general. If you do not have this conversation with them, they cannot do their best by you as they will be guessing.

Sit with your Attorney-in-Fact and explain what the document does and why you think they are the best person for this role.  A Power of Attorney normally, takes effect as soon as the principal signs it. Most people do not intend that their Durable Power of Attorney be used until they are incapacitated. The principal should discuss this with their Attorney-in-Fact so that both parties are clear on what the principal’s wishes are so that they can be carried out without delay or question. 

Fourth Reason…

Just because you appoint someone as your Attorney-in-Fact, does not give them the authority to do whatever they want with your affairs. Giving someone a Power of Attorney does not limit your rights in any way. It simply gives the other person the Power to act when you cannot.

Your Attorney-in-Fact would be your fiduciary. A fiduciary is a person who is held to a high standard of good faith, fair dealing and undivided loyalty to the principal. The Attorney-in-Fact must always act in the principal’s best interest. The Attorney-in-Fact should keep complete records of what they do in case there are any questions of impropriety or bad faith dealing.

A principal may revoke a Power of Attorney at any time. All the principal needs to do is send a letter to his or her Attorney-in-Fact telling the Attorney-in-Fact that their appointment has been revoked. From the moment the Attorney-in-Fact receives the letter, they can no longer act under the Power of Attorney. If want to have proof that this letter was in Fact received by the Attorney-in-Fact, send the letter certified signature required.

Fifth Reason…

Mostly importantly, you are providing yourself and your family members with peace of mind. If you become incapacitated, there is a plan already in place. Your family does not need to rush to court to get authority to perform basic tasks, like paying the mortgage. Knowing this has been taken care of in advance is of great comfort to families.

Have questions or concerns about your estate planning? Contact us to discuss further:

E.M. Curran & Associates LLC

10 Tower Office Park
Suite 406
Woburn, MA 01801
Phone: 781-933-1542
Fax: 781-933-1549
ellen@emcurranlegal.com