Probate Court Guardianship: Planning Can Protect Your Rights

Probate Court Guardianship supervises a person's medical care. Conservatorship oversees a person's financial matters. If an elder loses the ability to communicate informed decisions, someone else must speak for that person. Advance planning can protect a person from the need for Guardianship.

How to Protect Yourself From Probate Guardianship

If you have a properly drafted Health Care Proxy document, the need for Guardianship is eliminated. The Proxy document provides the authority that family members need to take care of medical treatment. Combined with a Power of Attorney that designates a person who is responsible for financial transactions, the people you designate will be able to manage your affairs without involvement of a Probate Court.

If there are disputes or problems, the Massachusetts law gives great deference to the Power of Attorney and Health Care Proxy documents. Section 17 of the Massachusetts Health Care Proxy law says that a Health Care Agent cannot be removed, unless there is good cause. Also, a person can write Guardianship instructions into their will, to designate who becomes Guardian of their spouse. You can save your family from the grief of Guardianship proceedings if you have POA, Health Care Proxy and Will documents that are properly written, to manage your specific financial circumstances and health care decisions.

The Power of Attorney Selection Checklist can help you pick the people who will be responsible to protect your interests and your wishes. Your power of Attorney can include instructions on who to appoint if a Guardian or Conservator is ever needed. Section 5-503 of the Massachusetts Probate Code says that when you nominate someone to serve as your Guardian or Conservator, the person named in the document must be appointed by the Court, unless there is good cause to appoint someone else. Our estate planning services include counseling that helps you select your Health Care Agent, and tools you can use to instruct the people you nominate as your Health Care Agent and Alternates.

But without these advance planning documents, the process of Guardianship becomes necessary, to supervise a person's medical treatment. Conservatorship may also be required for any financial transactions involving the person's real estate and assets.

When there is No Health Care Agent: Petitioning for Guardianship

If you don't have a competent Health Care Agent, doctors, hospitals and health care providers will insist on appointment of a Guardian. A petition for Guardianship is a very serious step. It involves taking control of decision making for another person. Important decisions about the person's life are being entrusted to another person, and the Probate Courts are protective of a person's rights to autonomy. If you have a family member who needs Guardianship, we can prepare the Petition and obtain the proof that you need to obtain the Guardianship authority. We can represent you in Probate Court, as long as we have not previously represented your loved one.

We believe that representation of the person who is petitioning to be a Guardian is adverse to the representation of the Incapacitated Person. This is because the Incapacitated Person does not have the ability to consent to the Guardianship. There are many other reasons for separate representation of the Incapacitated Person: protection of the person's confidential information and their previously stated wishes, and advocacy of their right to live in the least restrictive environment. Some of these reasons are further explained in an article by the Massachusetts Board of Bar Overseers. Under the Massachusetts Probate Code, the person who goes under Guardianship is known as an Incapacitated Person. Q & AAre there forms that can just be filled out so I can get Guardiansihp over my Mom?

Can you be a guardian of your Mom or a POA if you are already her paid Personal Care Attendant?

When Guardianship Becomes Necessary: Nursing Home Admission

In the past, family members and Guardians have been able to sign people of limited capacity into nursing homes without any special authority. Section 5-309(g) of the Probate Code now requires any Guardian to get special permission from the Probate Court BEFORE a person can be admitted to a nursing home. If the person needing care is under Guardianship, the nursing home will require the Guardian get approval for the admission from a Probate Court judge. Dealing with the delay and costs of probate court can become time consuming and confusing. Our services are designed to prevent wasted time and confusion. We know that caring for your loved one is your first priority. Probate Court Form 829 for Short Term Nursing Home Admissions; Instructions; Probate Court Press Release; PDF Putting the Pieces Together Before, During and After a Nursing Home Admission.

When Guardianship Becomes Necessary: Antipsychotic Medication

Guardianship may become necessary if an incapacitated person declines to take medication.

If there is no Health Care Proxy, these medications require Probate Court Guardianship, and a Rogers Order:


Abilify (aripiprazole)
Clozaril (clozapine)
Geodon (ziprasidone)
Haldol (haloperidol)
Loxitane (loxapine)
Mellaril (thioridazine)

Moban (molindone)
Navane (thiothixene)
Orap (pimazide)
Prolixin (fluphenazine)
Risperdal (risperidone)
Serentil (mesoridazine)
Seroquel (quetiapine)
Stelazine (trifluperazine)
Thorazine (chlorpromazine)
Trilafon (perphenazine)
Zyprexa (olanzapine)

Spotlight on Haldol

MassachusettsHaldol is one of the antipsychotic medications used on nursing home residents in Massachusetts. According to the Physician's Desk Reference, Haldol, also known as Haloperidol, "is an anti psychotic drug used to treat schizophrenia," control Tourette's disorder in adults and children, and " hyperactive children with aggression when other treatments are ineffective." The PDR says that "Haloperidol has caused death in elderly people taking it for psychological problems."

We can explain your continuing duties to your loved one, including the duty to monitor any medication that the person needs. If a person under Guardianship needs antipsychotic medications, special "Roger's Authority" from the Probate Court, will be required. Roger's Authority (named after a Supreme Judicial Court case) is obtained by the Guardian, who petitions the court, and provides medical evidence from doctors that explaining the need for the medication.

Rogers authority is similar to the special authority needed for a nursing home admission. Rogers

authority is not required if the person has a valid Health Care Proxy. When a Guardianship goes into effect, the authority in the Health Care Proxy is no longer recognized by doctors, hospitals and nursing homes.

Psychiatric medications that do not require Rogers Authority for treatment include Ativan, Xanax, Trazaone and antidepressants such as Celexa, Prozac, and Zoloft. Although special authority from the court is not required, nursing homes may still require a resident's responsible party to give informed consent for these medications.


Protecting Quality of Life, and Providing the Best Care for Your Loved One

Helping you avoid the need for antipsychotic medication whenever possible is part of the elder are planning process. When you have been appointed to serve as a Guardian, we can help you coordinate all of the sources of payment, and elder care services in the Hampden County area that are available to you and your loved one.

I provide continuing representation and counsel to families who need to obtain Guardianship authority. NAELA NewsI can help you coordinate the Conservatorship process that may also be required, Conservatorship can include a Petition to Expand the Authority of a Conservator that allows the Conservator to protect assets. Call for help with asset protection if you have a family member who needs Guardianship.

An important part of our services is helping family members find resources to prevent the need for a nursing home admission and medication. There are many ways for families to work with physicians, companion services, and support groups, to make life more comfortable for the memory loss patient at home or in assisted living. Information on At-Home elder care. If there is no alternative to nursing home care, Medicaid planning includes saving the patient’s resources for supplemental services that nursing home room and board will not cover.  Information on pooled trusts. One-on-one care and companionship in the nursing home setting can comfort patients, and provide alternatives to the physical and chemical restraints.