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Articles

Guardianship and Alternatives

By Meredith H. Greene on September 2, 2020
In Massachusetts, the law dictates that all individuals are presumed legally competent to make their own decisions upon reaching adulthood at age 18. All adults are afforded the right to privacy relative to their medical information, the right to enter into legal contracts, and the right to make their own life choices. If an individual is unable to make and communicate decisions relative to his/her own safety and care, the Massachusetts Probate Court can appoint a guardian to make medical, educational, and legal decisions for such person. If an individual is able to make his/her own decisions but would benefit from a trusted support system to make life decisions, there are alternatives to guardianship that establish such a support system. Parents and family members of a loved one who is turning 18 and has a developmental delay, an intellectual disability, or a mental health condition, should consider whether their child requires a court-appointed guardian or whether they would be better served by a support system to help them make decisions for themselves.

GUARDIANSHIP

The Probate and Family Court Department of the trial court in Massachusetts has jurisdiction over the appointment of a guardian and/or conservator for an incapacitated adult. The Petitioner (the individual who requests the guardianship action) must provide documentation to the court that the alleged “Protected Person” (the individual in need of guardianship) has a clinically diagnosed condition rendering him/her unable to receive and evaluate information well enough to make and communicate decisions that would meet essential requirements for physical health, safety, and self-care--even with appropriate technological assistance.

The Petitioner must file medical documentation evidencing the Protected Person’s inability to make decisions for him/herself. For those individuals with an intellectual disability, such medical documentation must be in the form of a Clinical Team Report (“CTR”). The CTR must be signed by a licensed psychologist, a social worker, and a physician. Each of these professionals must be experienced in the evaluation of persons with an intellectual disability and must examine the Protected Person within 180 days of the petition for guardianship being filed. If the petition for guardianship is filed close to the individual’s 18th birthday, the timing might work out such that the school psychologist and social worker who participated in a school’s three-year re-evaluation process are eligible to sign the CTR.

If the Protected Person is not intellectually disabled, a medical certificate signed by a registered physician, certified psychiatric nurse clinical specialist, nurse practitioner, or licensed psychologist must be filed based on an evaluation of the Protected Person within 30 days of filing the petition for guardianship with the court. There must also be a medical certificate based on an evaluation of the individual within 30 days of the final hearing. Typically, the final hearing is more than 30 days after the initial filing of the petition, which means this must be a second, updated medical certificate.

The Petitioner is required to provide notice of the guardianship petition by in-hand service to the Protected Person as well as to a number of interested people. Notice of the petition must be mailed to the Protected Person’s immediate family members, anyone living with the Protected Person, those who have had care and custody of such person within the last 60 days, the current guardian/conservator (if any), and the current representative payee (if any), as well as the Department of Developmental Services for those individuals with an intellectual disability.

A guardian, once appointed by the court, has the responsibility to make day-to-day decisions for the Protected Person, including decisions relative to legal proceedings, educational development, medical care, advocacy, and obtaining appropriate adult services. The guardian should consider the Protected Person’s own desires, preferences and thoughts in making appropriate decisions and should encourage independent decision-making to the extent the Protected Person is able to make decisions relative to his/her own well-being.

A guardian of an adult does not have the broad powers that a parent of a minor child has, regardless of the guardian’s familial relationship to the Protected Person. There are limitations to the types of medical decisions that a guardian can consent to without obtaining court approval. These limitations include the authority to treat with antipsychotic medications, sterilization, abortions, electro-shock therapy, psychosurgery, some level III behavior modification plans, and the withdrawal of life support. Additionally, a guardian must have court approval to admit the Protected Person to a nursing home for longer than 60 days or to commit such individual to an in-patient mental health facility.

Once appointed, the guardian has a duty to report to the court on the condition of the Protected Person. Such reporting is required 60 days after the initial appointment as well as annually. The guardian must give a copy of such report (called a Guardian Care Plan Report) to the Protected Person prior to filing it with the court.

ALTERNATIVES TO GUARDIANSHIP

There exists a misconception in society that all individuals with disabilities, particularly intellectual disabilities, require a guardian to make decisions for them in order to protect them from exploitation. However, many individuals with disabilities are capable of making decisions relative to their health, finances and life choices as long as they have the correct support system in place. There are statutory alternatives to guardianship that allow for the individual to retain his/her right to make choices, to advocate for him/herself, to express his/her own choices, and to formalize a system of support for such choices.

A health care proxy is a document signed by an individual (“Principal”) who is at least 18 years old, that designates a health care agent to make medical and health care decisions for the Principal if he/she is unable to make or communicate such decisions for him/herself. The health care agent has the ability to employ medical professionals and to consent to medical treatment or hospitalizations. The health care agent has access to medical information in order to make medical decisions. The authority for an agent to act can be revoked at any time by the Principal. Any decisions made by such agent can be overruled by the Principal.

The durable power of attorney is a legal document signed by the Principal appointing someone as “attorney-in-fact” to perform a broad variety of acts on the Principal’s behalf. The attorney-in-fact may deal with the Principal’s finances, property or legal matters. The law allows such appointment to be effective even upon a subsequent determination of the Principal’s incapacitation. Similar to a health care proxy, the durable power of attorney is valid only so long as the Principal does not revoke it.

We suggest that individuals with a disability who require educational supports, or who may receive government benefits as an adult, also execute an appointment of advocate. In this form (created specifically by Fletcher Tilton PC), the Principal would designate an advocate to work with the school system or the appropriate adult service organization, such as the Department of Developmental Services (DDS), Department of Mental Health (DMH), or Massachusetts Rehabilitation Commission (MRC). This would enable the advocate to sign an Individualized Education Plan (IEP), an Individual Service Plan (ISP) in order to receive notifications from agencies and entities providing services to the Principal, and to allow for such agencies and entities to communicate with the appointed advocate.

In addition to naming an agent, attorney-in-fact, and advocate, as described above, the Principal should designate individuals as successor agents, attorneys-in-fact and advocates should the primary agent be unable to continue to serve in their roles.

CONCLUSION

Every individual has the right to dignity, respect, and self-determination. Regardless of whether that individual has substituted decision-making through a guardianship or supported decision-making through health care proxies and advocates, the parties who are responsible for decision-making must take extreme caution to promote and ensure independence and self-advocacy within the best interest of the Protected Person/Principal to every extent possible. Both guardians and agents/advocates should take the time and effort to understand and effectuate the preferences and desires of the individual for whom they have the honor of making decisions.

©2020. This material is intended to offer general information to clients and potential clients of the firm, which information is current to the best of our knowledge on the date indicated below. The information is general and should not be treated as specific legal advice applicable to a particular situation. Fletcher Tilton PC assumes no responsibility for any individual’s reliance on the information disseminated unless, of course, that reliance is as a result of the firm’s specific recommendation made to a client as part of our representation of the client. Please note that changes in the law occur and that information contained herein may need to be reverified from time to time to ensure it is still current. This information was last updated August 2020.
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