Probate Court Guardianship, and Ways to Avoid Guardianship
By Attorney John L. Roberts, Longmeadow, Massachusetts
Probate Court Guardianship supervises a person's medical care. Conservatorship oversees a person's financial matters. A Guardian stands in the place of the ward in making decisions about the ward's well-being. The Guardian is held to high standards of fidelity in exercising this authority.
If an elder loses the ability to communicate informed decisions, someone else must speak for that person. If the elder has properly drafted Power of Attorney and Health Care Proxy documents, the need for Guardianship can be eliminated. These documents provide the authority that family members need to take care of medical treatment and financial transactions.
If there are disputes or problems, the Massachusetts law gives great deference to a previously signed Power of Attorney or Health Care Proxy. Section 17 of the Health Care Proxy law says that a Health Care Agent cannot be removed, unless there is good cause. Section 5-503 of the Massachusetts Probate Code says that when a person nominates someone else to serve as his or her Guardian or Conservator, the person named in the document must be appointed by the Court, unless there is good cause to appoint someone else. Also, a person can write Guardianship instructions into their will that control who become Guardian of their spouse. You and your family can save yourselves from much grief if you have POA, Health Care Proxy and Will documents that are properly written, to manage your specific financial circumstances and health care decisions!
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.
Guardianship is considered very serious. We are all endowed by our Creator with certain unalienable Rights. As expressed in the Declaration of Independence, our rights include Life, Liberty and the pursuit of Happiness. Guardianship can have the effect of limiting our right to Liberty, since important decisions about a person's life are being entrusted to another person, the Guardian. Probate Courts are protective of a person's rights to autonomy.
In a 2010 case, the Massachusetts Appeals Court upheld a Hampden County Probate Court judge's decision to throw out a guardianship petition filed by a hospital, because the patient had been discharged to the community.
Click to Read the case.
BAYSTATE MEDICAL CENTER , INC. vs. SONG WATERWOOD.
09-P-1263 76 Mass. App. Ct. 1120, 2010 Attorney John Lynn represented the respondent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Baystate Medical Center, Inc. (Baystate), appeals from a decree dismissing its petition for guardianship of Song Waterwood. We affirm.
Nothing has been made to appear that would cause us to conclude that Baystate has standing to bring such an action. The record reflects that Waterwood has been released from the facility into the community.
By way of dicta, we are obliged to point out that perhaps with the involvement by the Department of Mental Health, either directly or as friend of the court, in the future, such serious mental health issues may be resolved in a more fruitful manner. For example, holding an evidentiary hearing or permitting additional pleading in an effort to expand the record would certainly give this court a better opportunity to examine the substantive merits and legal consequences.
Decree dismissing petition for guardianship affirmed.
By the Court (Cypher, Brown & Rubin, JJ.)
Under the Massachusetts Probate Code, the person who goes under Guardianship is known as an Incapacitated Person. Section 5-309(g) of the Probate Code requires any Guardian to get special permission from the Probate Court BEFORE a person can be admitted to a nursing home. In the past, family members have signed people of limited capacity into nursing homes all the time. But now, if they have become the person’s Guardian, the nursing home will require they go through the probate process first. 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.
If you have a family member who needs Guardianship, we can prepare the Petition and obtain the proof that you need to obtain 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.
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.
We can also explain your continuing duties to your loved one, including the duty to monitor any medication that the person needs. If a person needs anti-psychotic 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. But, once a Guardianship is created, the authority in the Health Care Proxy is no longer recognized by doctors, hospitals and nursing homes.
| If there is no Health Care Proxy, these medications require Probate Court Guardianship, and a Rogers Order: |
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| Haldol (haloperidol) Zyprexa (olanzapine) Risperdal (risperidone) Seroquel (quetiapine) Trilafon (perphenazine) Mellaril (thioridazine) Thorazine (chlorpromazine) Clozaril (clozapine) |
Serentil (mesoridazine) Loxitane (loxapine) Moban (molindone) Navane (thiothixene) Orap (pimazide) Prolixin (fluphenazine) Stelazine (trifluperazine) Navane (trithixene) Geodon (ziprasidone) Abilify (aripiprazole) |
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.
Our office provides continuing representation and counsel to families who need to obtain Guardianship authority. We also coordinate the Conservatorship process that is required, Conservatorship can include a Petition to Expand the Authority of a Conservator that allows the Conservator to transfer assets to family members. Call us at (413) 567-5600 for help with asset protection if you have a family member who needs Guardianship.
