Massachusetts Estate Planning and Elder Law

New Massachusetts Medical Certificate for Guardianships

The Massachusetts Probate Courts have come out with a new, much more comprehensive, medical certificate to be used when petitioning for a guardianship of a person.  The old form was 2 pages, and consisted mostly of blank lines, which left it up to the doctor filling the form to come with what information he or she thought was needed.  The new form is 8 pages, and requires much more detailed information from the doctor.  It also requires the doctor to specify whether a limited guardianship or a full guardianship is needed.

Click here to access the new Medical Certificate. Download medcertgdn31408.pdf
For comparison, here is the old certificate: Download OldMedicalCert.pdf

Quite a difference.

Here's the link to the official announcement on the Probate Court Website.

 

Guardianship - Authority and Responsibility of the Guardian

In general, the guardian has complete control over the financial, medical and personal decisions of the ward. This includes where the ward will live, how the ward's money is spent, and making routine medical decisions for the ward. A ward has no more authority to make these decisions for themselves. 

The guardian also has the responsibility to account for all of the ward's income and expenses. In the beginning of the guardianship, the guardian files an inventory with the Court of all the wards assets, and after that the guardian files an annual accounting with the Court showing how much money came in, where it came from and where it went. At the end of the guardianship, the guardian must file a final accounting with the Court.

Being a guardian is  a big responsibility, and not one to be taken lightly. If there is time to plan before a crisis, you can save so much time and money, and prevent a lot of family conflict, by having some straight forward documents executed that spell out your wishes.  If you think your aging parent needs a guardianship, your lawyer can work with you to accomplish that. What plan do you have in place in the event of your own incapacity?

Guardianship of An Aging Parent - the Process

Having to consider a guardianship over an aging parent is difficult, although sometimes necessary.  In most cases, if someone has a comprehensive durable power of attorney drafted and a health care proxy in place, that should do away with the need to pursue a guardianship. However, if the appriopriate documents have not been drafted, or if they are insuffucient to meet the needs of the elder, a guardianship may have to be sought. 

A guardianship is a legal relationship whereby the Probate and Family Court give the guardian the power to make personal and financial decisions for the ward (the person who is no longer competent.)  A guardian can be appointed when someone is incompetent due to mental illness (including dementia or Alzheimer's disease), mental retardation, or physical incapacity.

Below are some of the steps that must be taken. 

First, you should have your parent or loved one  evaluated by a physician to determine if, in fact, they are unable to care for themselves.  In some cases, such as when someone has had a stroke and is completely incapacitated, this may be clear, whereas in other cases, such as someone with memory loss, it may be less clear whether the person is still able to handle their own affairs. 

If the physician determines that the proposed ward is unable to care for themselves, you would then need to file a petition in the Probate Court requesting that a guardian be appointed. Two petitioners must sign the petition, and the proposed guardian must file a bond with the Probate Court.  The Court will require that the proposed ward and their heirs receive notice of the petition.   The Court sets a date by which anyone, including the proposed ward, may object to the guardianship. Then, a hearing is held and the judge decides whether a guardian should be appointed. 

A temporary guardian can be appointed for 90 days, or a permanent guardianship can be establish. A guardianship lasts until the ward can establish that he or she is competent,  the ward passes away, or the guardian resigns or passes away or is removed by the Probate Court.