On July 1, 2009, the guardianship landscape in Massachusetts changed
forever. Provisions that are designed to make it more difficult to take
one’s liberty are in fact going to make it extremely difficult for the
person petitioning for the guardianship.
The new law is all about “limiting” the guardianship, and full guardianships
are supposed to be the exception rather than the rule. According to the new
statue “The Court shall encourage self reliance and independence of the
incapacitated person and seek to limit the authority exercised over the
There is no more guardian of the person and property as there has been in
the past. Now, two separate petitions must be filed- a guardianship over the
person and a conservatorship over the property of the incapacitated person.
The person under a guardianship is now referred to as an “incapacitated
person” and the person under a conservatorship is a “protected person". No
one is referred to as a “ward” anymore unless he or she is a minor.
The individual’s doctor is also put in the position of having to complete a
seven page medical certificate explaining why a limited guardianship is not
appropriate. As a certificate is only good for 30 days, every time a
guardian needs to expand his authority over the incapacitated person, the
guardian must go into court with a new medical certificate.
Since the new law also frowns upon emergency, temporary guardianships unless
it finds a substantial risk to the incapacitated person’s health, safety or
welfare, hospitals are left wondering what will happen to patients who no
longer require hospitalization but cannot be moved to a nursing home without
Probably the most burdensome change is the provision that requires specific
authority to admit to a nursing home. Unless the petitioner knows that
nursing home placement is imminent, he will have to come back into court to
seek authority to admit to a nursing home when the time comes. One cannot
receive prospective, general authority to admit to a nursing home. For those
persons under a guardianship who are already in a nursing home, court
permission will be needed if the guardian wishes to move them to a different
Guardianships are also going to become more expensive to obtain. If the
incapacitated person requests an attorney, or if someone (such as a
disgruntled family member) requests one on behalf of the incapacitated
person, the court must appoint an attorney for the incapacitated person and
the petitioner could be forced to pay for that attorney.
Once the petitioner has obtained the guardianship, he must file a care plan
with the court within 60 days or could lose the appointment as guardian. The
court forms for this are still being developed and the courts as of yet do
not have a tracking system in place.
The guardian must also file an annual report and give notice of the report
to all interested parties.
While conservators have always had to account for how they spent the
protected person’s money, now they will have to file a financial plan
indicating how they intend to spend the money, in addition to filing an
account showing how the money was spent.
How does one avoid the nightmare of having to pursue a guardianship- by
having comprehensive estate planning documents in place. A well drafted
power of attorney and health care proxy can avoid the need to wind your way
through the courts while a loved one lingers because no one has authority to
act on their behalf.
The Law Office of Karen A. McSherry in North Easton, MA is committed to providing legal
services and solutions to clients in the areas of Estate Planning and
Administration, Nursing Home Planning and Business and Tax Planning.
Attorney McSherry has more than 20 years experience, having earned her
Masters of Law in Taxation (LLM) at the Boston University School of Law,
her JD from the University of Notre Dame Law School and her B.A. in Public
Administration from Stonehill College. As an active member of the
Massachusetts Chapter of the National Association of Elder Law Attorneys (NAELA),
Attorney McSherry stays current on the latest changes in legal issues
affecting all of us. For more information or to schedule an appointment, Please call Karen
at 508-238-3333. For more information on the Law
Office of Karen A. McSherry, go to www.kmcsherrylaw.com.