Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
An incapacitated person or any person interested in the welfare of the incapacitated person may initiate guardianship proceedings by filing a petition for the appointment of a limited or unlimited guardian.
The petition shall set forth the petitioner’s name, residence and address, relationship to the person alleged to be incapacitated, and interest in the appointment, and, to the extent known, set forth the following with respect to the person alleged to be incapacitated and the relief requested:
(1) the name and age of the person alleged to be incapacitated, his residence and the date residence was established;
(2) the address of the place it is proposed that the person alleged to be incapacitated will reside if the appointment is made;
(3) a brief description of the nature of the alleged incapacity, and whether the person is alleged to have an intellectual disability, the petitioner seeks court authorization to consent to treatment for which a substituted judgment determination may be required, or the petitioner seeks court authorization to admit the person alleged to be incapacitated to a nursing facility.
(4) the name and address of the proposed guardian, his relationship to the person alleged to be incapacitated, the reason why he or she should be selected, and the basis of the claim, if any, for priority for appointment;
(5) the name and address of the person’s spouse;
(6) the name and address of the person who has care or custody of the person alleged to be incapacitated or with whom the person has resided during the 60 days (exclusive of any period of hospitalization or institutionalization) preceding the filing of the petition;
(7) the name and address of any representative payee;
(8) the name and address of any person nominated as guardian by the person alleged to be incapacitated, and the name and address of any guardian or conservator currently acting for him in the commonwealth or elsewhere;
(9) the name and address of any agent designated under a durable power of attorney or health care proxy of which the person alleged to be incapacitated is the principal, if known to the petitioner, and the petitioner shall file with the petition a copy of any such power of attorney or health care proxy, if available;
(10) the reason why a guardianship is necessary, the type of guardianship requested, and if a general guardianship, the reason why limited guardianship is inappropriate, and if a limited guardianship, the powers to be granted to the limited guardian;
(11) a medical certificate of the ward dated within 30 days of filing the petition; and
(12) a general statement of the property of the person alleged to be incapacitated with an estimate of its value, including any insurance or pension, and the source and amount of any other anticipated income or receipts.
Notice of Hearing:
Notice of the petition must be given to the person alleged to be incapacitated or the person to be protected, if 14 or more years of age, and the person’s spouse and children, or, if none, parents, brothers, and sisters, or, if none, heirs apparent or presumptive.
Examinations, Evaluations, and Interviews:
The court may require additional medical or psychological testimony as to the mental and physical condition of the person alleged to be incapacitated or disabled and may require that such person submit to examination. The court may also appoint one or more persons, expert in incapacity or disability, to examine such person and report the conclusions thereof to the court.
Adjudication and Disposition:
If, after a hearing, the court or a jury determines the respondent is incapacitated, the judge issues an order appointing a guardian and outlining the scope of the guardian’s powers.
Conservatorship in Massachusetts:
The person to be protected or any person who is interested in the estate, affairs, or welfare of the person, including a parent, guardian, custodian, or any person who would be adversely affected by lack of effective management of the person’s property and business affairs may petition for a determination of disability, in whole or in part, and the appointment of a conservator or for other appropriate protective order.
The process for the appointment of a conservator parallels that of guardianship but is less involved.
Mass. Gen. Laws ch. 190B, § 5-303
Mass. Gen. Laws ch. 190B, § 5-304
Mass. Gen. Laws ch. 190B, § 5-305
Mass. Gen. Laws ch. 190B, § 5-306
Mass. Gen. Laws ch. 190B, § 5-404
Mass. Gen. Laws ch. 190B, § 5-405
Mass. Gen. Laws ch. 190B, § 5-407