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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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