When a loved one becomes unable to make their own decisions, due to illness or injury, they likely require a legally appointed Guardian and/or Conservator.
An unfortunate result of rising life expectancy is that many people end up living in a compromised state, dependent on others for their personal needs. Many of these people deteriorate mentally to where they can no longer understand and appreciate the consequences of their decisions. And while this incapacity can develop over time, it can also strike in an instant, through a devastating injury or sudden medical event.
The preferred mechanism for handling a lack of capacity is a health care proxy and durable power of attorney. But when the incapacitated person does not have these documents in place, the solution is to petition the Massachusetts Probate and Family Court to appoint a Guardian to make personal and medical decisions, and aConservator to make financial decisions.
The process of petitioning for Guardianship/Conservatorship begins with a medical evaluation. The examining doctor then completes a Medical Certificate that explains the scope of the incapacity, and what abilities the proposed ward retains, if any. The Medical Certificate, along with the official Petition, is then filed with the court. The court will process the case, and issue a Citation, which must be served upon the incapacitated person, and certain other interest parties. Those interested parties then have a period of time to object to the Guardianship/Conservatorship. After the time for objections has passed, the court will hold a hearing, where the Petitioner can explain the scenario, and others can offer testimony as well. The judge will then rule on the Petition.
Depending on the individual circumstances, the judge may appoint counsel for the Respondent (proposed ward), may appoint a Guardian ad Litem to review the case and provide a report to the court, may appoint a Rogers Monitor to oversee specific extraordinary medical treatment, and may approve the Petition subject to certain limitations. In emergency situations, the Guardianship procedure may be expedited.