Guardianship

What is a Guardianship And How Can A Lawyer Help?

Guardianship is a legal arrangement that allows one party—whether that be a concerned individual, a lawyer, or even an organization—to make personal and legal decisions on behalf of an individual who is not fully capable of doing so himself or herself.

Guardians are individuals appointed by the probate and family court. The person for whom a guardian is appointed is called a ward. A court might appoint a guardian if one of the following conditions are present: the ward is a minor under the age of 18, the ward is determined to be mentally ill by a physician, the ward due to excessive drinking, gambling, or drug use is wasting his/her estate, or the ward is determined to be mentally retarded by a physician.

Two Forms of Guardianship

There are two forms of guardianship: guardianship of adults and guardianship of minors. Each has their own requirements and process for approval.

Guardianship of Adults
Under Massachusetts law, any concerned individual—or corporate party, for that matter—may apply to be the guardian of an adult who fits the criteria of an “incapacitated person” whose decision making is significantly affected by a diagnosed medical condition The guidelines for an incapacitated person include, but are not limited to someone with:

  • a severe intellectual disability (an IQ of about 70)
  • a severe traumatic brain injury (TBI)
  • severe mental illness

There are special situations, such as the cognitive decline of a spouse due to Alzheimer’s or the coming-of-age of a disabled child, that the court may also consider as reasons to award guardianship.

The goal of the court, in reviewing a petitioner’s application for guardianship, is to ensure that the rights of the respondent (person under guardianship) are protected and that the respondent will enjoy the fullest extent of freedom while being protected. The court will seek to find and enforce the most independent living situation possible for the respondent, seeking to prevent the abuse of the respondent or the respondent’s assets.

Guardianship of Minors
When a minor’ parents are both deceased or, more rarely, declared inadequate, the court will assign guardianship of that minor. It is very rare for both parents to be declared unfit. When the parents have died with a will, there is typically a provision regarding the guardianship of their child or children. When the minor is fourteen or older, he or she must nominate a guardian.

The petitioner for guardianship of a minor need not be related, though often it is relatives who petition. The court will review the petition to make sure that the potential guardian is a safe and nurturing caretaker for the minor. Precautions are also put in place to protect the minor’s assets from exploitation as well.

If you have a loved one in need of guardianship, or who may need guardianship in the future, call our office today to discuss your options and to help prepare your petition.

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