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Common Legal Terms
A GUIDE TO GUARDIANSHIP/CONSERVATORSHIP
Guardianship and conservatorship relate to control over the personal
and financial aspects of a person's life. In certain circumstances,
a person may be unable to effectively make decisions in these
areas. In these cases, a guardian or conservator may be needed.
WHAT IS GUARDIANSHIP/CONSERVATORSHIP?
- Guardianship is the most restrictive form of decision
making aid designed to protect an individual.
- A Guardian is a person appointed by the probate Court
who is given the duty of taking care and/or managing the personal
and financial matters of another person (the ward) who, due to
such conditions as mental illness or mental retardation, is incapable
of handling his or her own affairs.
- Conservatorship is a less restrictive form of supervision
than guardianship.
- A Conservator is a person who is appointed by the Court
to handle only the property of the ward - not the person, as is
the case with guardianship. The ward remains free to make other
personal decisions.
- Guardianship and Conservatorship are not intended to protect
a person from normal daily risks. They should not be used simply
because a person is about to make decisions showing poor judgment.
WHEN IS GUARDIANSHIP/CONSERVATORSHIP APPROPRIATE?
Guardianship is appropriate for persons with very serious
problems of judgment or intellectual capacity which pose a major
threat to the person's welfare and prevent the intake of basic
information necessary for decision making.
In evaluating the need for a guardian, it must be determined if
the person can:
- understand the basic facts and implications of a decision.
- generally be able to take care of him/herself in the sense
of recognizing potentially harmful situations and doing something
about them, or getting other to help.
- understand the basic laws of the community.
- demonstrate or learn enough basic skills to live in a group
residence or own home if such were available.
Conservatorship is appropriate for a person who is capable
of making decisions about personal affairs, but, for some reason,
is unable to handle financial matters.
- A conservatorship should be used for people whose judgment
or intellectual capacity is so impaired that they base financial
decision on delusions or they can't absorb the basic information
to adequately make the decisions.
WHAT ARE THE EFFECTS OF GUARDIANSHIP/CONSERVATORSHIP ON THE
WARD?
The imposition of guardianship causes the ward to lose many civil
and legal rights (i.e., the right to vote, to make contracts,
to make large expenditures without the consent of the guardian).
The guardian's authority may also include the power to consent
to or withhold certain medical treatment.
The imposition of a conservatorship causes the ward to lose the
right to: sign checks; obtain or use credit cards; buy, sell
or mortgage property; make investments or large expenditures;
except in cases concerning necessities such as food.
HOW IS A GUARDIANSHIP/CONSERVATORSHIP OBTAINED?
A Petition must be filed in the Probate Court in the county where
the person resides, or where he/she holds property. The petition
must be accompanied by evidence indicating that the individual
is incapable of taking care of him/herself. In the case of mental
retardation, this need must be determined by a clinical team.
Except in cases of emergency, at least seven days notice of the
time and place of hearing to appoint a guardian must be provided
to all interested parties.
WHO CAN BE A GUARDIAN/CONSERVATOR?
Any person who is 18 years of age or older, and whom the Court
feels will act in the ward's best interest, can become a guardian.
Should the ward be under care of a care-providing agency, that
agency should be considered a candidate for guardian or conservator
only as a last resort because it presents a potential conflict
of interest.
WHAT ARE THE RESPONSIBILITIES OF A GUARDIAN/CONSERVATOR?
A guardian must make all important personal and financial decision
for the ward in the ward's best interest.
A conservator is responsible for handling the ward's financial
affairs in the best interest of the ward.
Both guardians and conservators must file periodic accountings
with the Probate Court, detailing their handling of financial
matters.
It is important to note that it is the obligation of a guardian
or conservator to manage the ward's estate and affairs for the
benefit of the ward, rather than for the sake of any future heirs
or for his/her own convenience.
CAN A GUARDIANSHIP/CONSERVATORSHIP BE TERMINATED?
A conservatorship or guardianship can be terminated by the Probate
Court upon application of the ward, when it appears that the guardianship
or conservatorship is no longer necessary.
The above information was provided by:
VOLUNTEER LAWYERS SERVICE
or
THE SENIOR CITIZENS LAW & ADVOCACY PROJECT
332 Main Street - Suite 320
Worcester, MA 01608
Telephone: (617) 756-0839 or (617) 752-3718
 
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