How Guardianship Works in Massachusetts for Children & Families

Updated

Guardianships and conservatorships protect Massachusetts residents from neglect and exploitation by establishing a court-appointed decision-maker. Taking steps to establish one for a loved one can be an emotional experience, but the services Massachusetts offers can make it much less stressful.

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While filing a guardianship or conservatorship case invites the court into your lives, it also provides a high level of power to make medical decisions, arrange care, control finances, and more. 

What Types of Guardianships Exist in Massachusetts?

Several types of guardianships exist for Massachusetts residents. First, we can divide guardianships into guardianships and conservatorships. 

  • Guardianships: These grant care and medical decision-making powers.
  • Conservatorships: On the other hand, conservatorships focus on financial and business issues. 

Sometimes respondents need both types of protection or only one or the other. Both guardianships and conservatorships can be further divided into limited or plenary protections. Plenary guardianships and conservatorships mean the court grants the entire array of available powers to the fiduciary. Only fully incapacitated respondents receive plenary guardians and conservators.

Typically, courts try to make guardianships or conservatorships as limited as possible. As a result, the court tailors the fiduciary’s powers to fill in only the gaps created by the respondent’s specific incapacity. For example, many people can handle day-to-day pocket money but struggle with larger amounts or long-term planning.

Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Massachusetts?

As with many states, Massachusetts law establishes an order of priority for the appointment of guardians and conservators based on their relationship to the respondent. However, priority does not reflect a guarantee of being appointed and is far from default.

Ultimately, the court uses a best interests standard when appointing a guardian or conservator. It can skip over people with higher priority for someone with lower and even no priority. By focusing on appointing someone who will best serve the respondent, the court considers the skill and experience of a potential guardian and their ability to work with the respondent’s family and remain focused on the respondent’s needs.

What Forms Do You Need to File for Guardianship in Massachusetts?

Forms make up an important part of your case because they are the way you communicate with the court. You ask the court to do something for you through the forms–like appoint a guardian–and explain why the court should do what you ask. 

The Massachusetts judiciary makes all the forms you need for guardianship available online with instructions. Conveniently, they even group them by specific case type, so you just have to visit one page for your case type. As a result, you can get the forms for free online to file a guardianship for a minor or a guardianship for an adult.  

Take your time filling out the forms and fill them out completely. They require the full names and addresses of important family members. It can be tempting to fill them out as fast as possible to start your case, but the court can reject incomplete forms or issue orders asking for more information. Both of these things ultimately delay your case.

If you have questions about the forms, contact your local court service center or consult an attorney.

How Do You File for Guardianship in Massachusetts?

You file a guardianship case in the court that serves the county where the respondent lives. You can find a map and list of Massachusetts family and probate courts online. Depending on which case you file, the court also needs some supporting paperwork.

Guardianship for minors

If the minor is 14 or older, the court requires that the child consent to guardianship. If the minor has an ID, the court needs a copy. It’s important that teens feel in control of their situations. 

Guardianship for adults

The court needs either a completed clinical team report or a medical certificate to proceed with an adult guardianship case. A doctor, psychologist, or certified psychiatric nurse clinical specialist completes the medical certificate for incapacitated adults, but the respondent must have been examined within 30 days of when you file the petition. 

Alternatively, petitioners of cases for special needs adults can submit a clinical team report which is valid for six months from the last examination.

After filing the case, you’ll arrange for someone to personally serve the respondent. You’ll also need to notify all the interested parties in the case by mail. The court requires proof that you gave notice to everyone before the hearing. 

Then, at the hearing, the court determines whether the respondent meets the legal criteria for a guardian or conservator appointment. If they do, the court also decides who should be guardian and issues the order. 

How Do You Assign a Guardian for a Minor Child in Massachusetts?

Massachusetts parents can select from several options to assign a guardian or caretaker for their child. 

First, parents can nominate a guardian for their child to take effect if they become incapacitated or die. Such nominations should have two witnesses. While there’s no official form to nominate a guardian of this type, Massachusetts Legal Aid created a free form that you can use. 

In this scenario, guardianship takes effect when the parent dies or reaches incapacity. First, however, the guardian must go to the court to confirm the appointment within 30 days of its taking effect. The court can then issue a formal order appointing a guardian. 

If someone has already opened a minor guardianship case for a child, a parent can also file their formal consent to the guardianship. The parent simply fills out and signs the court’s waiver and consent to petition for guardianship.

Finally, parents can also authorize someone to take care of their child and make decisions for them through naming a caregiver. This option is less formal and powerful than guardianship, but it’s as simple as completing the online affidavit. 

How Guardianship Works for Minor Children

Guardianship for a minor child allocates the decision-making and control over a child that a parent normally has to another person. This includes enrolling a child in the school of the guardian’s choosing, deciding and consenting to medical treatment, signing the child up for public benefits, traveling with them, and consenting to travel.

Guardianships typically last only until the child turns 18. However, the parent, the child, or another party can ask the court to end the guardianship sooner if conditions change and the guardianship is no longer needed or appropriate. 

Guardians remain accountable to the court through an annual report detailing the child’s condition and progress. The court typically orders that the guardian send copies of the report to the parents. 

Conservatorship for minor children

Conservatorships give an adult the authority to manage money and hold property on behalf of a minor child. Often, parents informally do this by being on the children’s bank accounts, but official authority becomes necessary when a child owns significant amounts of money or property. 

Parents frequently discover that they need to file for conservatorship when the entity paying the minor – like a life insurance company or estate of a family member – requires a conservatorship order before releasing the funds.

While the conservator becomes responsible for managing the funds, the conservator remains responsible to the court. The court must approve any use of the minor’s funds, and typically, they cannot be used for basic expenses that a parent incurs.

A conservatorship lasts until the funds are exhausted or until the minor reaches adulthood, at which point the conservator releases funds to the minor.

How Guardianship Works for Older Adults

Guardianships grant medical and care decision-making for older adults who experience diminished capacity as they age. Guardianship for older adults can look different from person to person as the court customizes the guardianship to meet the respondent's needs. 

Guardianships can be full or limited, depending on the respondent’s condition. The court tries to limit the scope of the guardianship as much as possible so that the respondent can retain as much independence and self-determination as possible.

As with minor guardianships, guardians for adults remain accountable to the court in the form of an annual report. Guardians also send the report to the ward’s closest family members to address any concerns.

Conservatorship for adults

Massachusetts law carves financial decision-making out of a guardian’s powers into the separate role of a conservator. Conservators manage the money and property of a protected person but make no medical or care decisions. A respondent might have both a conservator and guardian or only one or the other. 

The conservator submits detailed reports to the court regarding the protected person’s assets and the use of their funds. The court approves or rejects spending plans and reviews any noteworthy changes in assets.

How Guardianship Works for Adults With Developmental Disabilities or Special Needs

As with older adults, the court tailors guardianships for special needs adults to encourage independent living and meet the needs of their unique medical and developmental conditions. Guardianships for adults run the spectrum from very limited for mostly independent wards to full, plenary guardianship to completely incapacitated persons unable to take care of any of their own needs or even communicate.

Conservatorship 

Conservators for special needs adults face the unique challenge of ensuring the protected person has adequate support throughout their lives. Given that some wards require a guardian and conservator from their 18th birthday through an average predicted lifespan, this can take skill and planning.

Additionally, conservators for special needs adults must be familiar with the rules impacting a person’s eligibility for Medicaid and other public benefits. Special needs adults often need special trusts that preserve their assets for their use without impacting benefit qualifications.

Frequently Asked Questions: Guardianship in Massachusetts

Even though Massachusetts makes many valuable resources available for free, know that some family situations are a lot more challenging than others. If none of these cases seem like a good fit, or you’re left feeling confused, consider talking to an experienced attorney in your area.

How long is temporary guardianship in Massachusetts?

A temporary guardianship can last up to 90 days. This is not a long-term solution.

Beyond being short-lived, temporary guardianships act as emergency proceedings. Therefore, the court considers appointing a temporary guardian on an expedited timeline when the petitioner alleges that the respondent’s health or safety is at risk and special forms are required. 

What’s the difference between guardianship, conservatorship, and custody in Massachusetts?

Custody cases typically deal with disputes between a child’s parents and might be part of the parents’ divorce case. Sometimes non-parents become part of a custody case because the child lives with them rather than the parent. Custody cases can yield detailed parenting schedules between multiple people.

In contrast, guardianships typically only grant power to one person or to a group of co-guardians. Guardians are always non-parents, so it wouldn’t be helpful for a parent to file a guardianship case against another parent. 

Finally, conservatorships grant an adult the legal authority to manage a minor’s money and property. The need for conservatorships often comes from a minor inheriting money or winning a personal injury settlement. Parents can be appointed as conservators. Some states call this a guardianship of the estate, so it can be confusing if you’re dealing with an out-of-state insurance company asking you to get guardianship of your own child.

Can you get guardianship without going to court in Massachusetts?

Only the court can appoint a guardian in Massachusetts. Guardianships involve the transfer of a lot of power – whether or an adult or minor – so the court safeguards everyone’s rights by overseeing the appointment.

Does the court have resources to help parties without attorneys?

The Massachusetts courts offer several in-person and online resources to help with guardianship cases. The court service centers are a great place to start for remote or in-person assistance. 

The Massachusetts judiciary also provides a wealth of resources about filing and managing guardianships online

Guardianships and Conservatorships Serve As A Last Resort for Adults

Guardianships and conservatorships are increasingly mainstream concepts, which may lead people to treat them as a first choice rather than the last resort that they are. Both case types remove a person’s fundamental liberties and place important decision-making responsibilities with another person.

Powers of attorney, collaborative care plans, home-based care, and medical devices can all provide support to adults in need of extra assistance reaching a safe quality of life. 


Sources:
  1. “Learn about the differences between guardians and caregivers.” Commonwealth of Massachusetts. Mass.gov
  2. “File for guardianship of a minor.” Commonwealth of Massachusetts. Mass.gov
  3. “File for guardianship of an incapacitated person. Commonwealth of Massachusetts. Mass.gov
  4. 192nd General Court of the Commonwealth of Massachusetts. “Descent and Distributions, Wills, Estates of Deceased Persons and Absentees, Guardianship, Conservatorship and Trusts.” 2022. Malegislature.gov

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