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 incapacitated person.”

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 court authorization.

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 facility.

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.