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Avoiding Conservatorship and Guardianship in Southeastern Massachusetts

What is a Guardianship?

Guardianship is a legal relationship whereby the Probate Court gives a person (the guardian) the power to make personal/medical (not financial) decisions for another (the incapacitated person).  A family member or friend initiates the proceedings by filing a petition in the Probate Court in the county where the individual resides.  A medical examination by a licensed physician is necessary to establish the condition of the individual.  Many times a Guardian Ad Litem (“GAL”) is assigned to assist in protecting the rights of the incapacitated person.  Usually, the Court requires that the petitioner give notice in a local newspaper or provide assents to the Guardianship.  A Court of law then determines the individual is unable to meet the essential requirements of his or her health and safety and appoints a guardian to make personal decisions for the individual.  Unless limited by the Court, the guardian has the same rights, powers and duties over the incapacitated person as parents have over their minor children.  The guardian is required to report to the court on an annual basis.

What is a Conservator?

A Conservator is a legal relationship whereby the Probate Court gives a person (the conservator) the power to make financial decisions for another (the protected person).  The Court proceedings are very similar to those of a Guardianship (notice requirements, appointment of GAL) except the Court of law determines an individual lacks the capacity to manage his or her financial affairs and appoints a conservator to make financial decisions for the individual.  Like the guardian, the conservator is required to report to the court on an annual basis.

The Solution can be a Durable Power of Attorney and Health Care Proxy

A durable power of attorney and health care proxy are a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself.  If you do not have a power of attorney or health care proxy or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Guardianship and/or Conservatorship.  A court proceeding is not only costly (we estimate that the average cost is $4,000), but the person appointed as your Guardian/Conservator may not be the person whom you would have chosen yourself.

Making informed decisions may become difficult or even impossible over time.  The longer you wait, the greater the risk becomes, but with proper planning, you will ensure that you’ve taken the best steps possible to protect yourself.  Do it now before it’s too late!  Contact a qualified Elder Law professional today.  Please call us to schedule an initial consultation.

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