What is Guardianship?
Guardianship is a legal proceeding in which someone (usually a family member) asks the court to find that a person is unable to manage his or her affairs effectively because of a disability. A guardian steps in the shoes of the person with a disability and makes the decisions for them.
The process to set up a guardianship can be long and expensive and is not a decision to be taken lightly. This article presents five things to think about when considering whether to seek guardianship for your child once he or she turns 18.
There are different types of guardianship depending on the person’s needs. Generally, there is a guardian of the person and guardian of the property and one person can serve as both.
A guardian of the person can make decisions about a person’s healthcare, housing, food, clothing, and other subjects that affect the person. A guardian of the property makes decisions about a person’s money, income, property, public benefits and other financial matters.
The Guardianship Process
Unless you check #10 on the Petition for Guardianship, asking the court to “waive sureties on the bond,” you will need to pay $50.00 fee for a bond “with sureties.”
The process of filing for guardianship of a minor
Prepare and file the necessary forms, along with the $50 fee for the bond. Once you have filed the papers, the Probate and Family Court will send or give you a Notice and Order. This is a paper that tells you when your court hearing will be and the people who need to be sent notice.
Provide notice. Giving proper notice includes providing a copy of the Petition, and a copy of the Order and Notice that the court will give you, to the “interested parties.” There are very important rules about how this is done. The “interested parties” include:
- The child’s parents (you do not need to send notice to a parent whose rights have been terminated)
- If the parents are dead, the child’s nearest relatives over age 18;
- The child if the child is 14 or over;
- Any current guardian or conservator for the child; and
- Anyone the child has lived with during the past 60 days, not including foster parents. If DCF has custody of the child, they must be notified
- The United States Veterans Administration if the child is entitled to any benefits.
The minor child has the right to a court appointed lawyer.
The minor child has the right to have a lawyer to represent him or her. The minor or someone acting on his or her behalf can ask the court to appoint a lawyer for the minor. If the minor or person acting on his or her behalf asks for a lawyer, the court must appoint an attorney. If the minor is poor and cannot afford a lawyer, the court can order that the minor's lawyer be paid by the state. Parents and guardians do not have the right to an appointed attorney.
The Notice and Order will have a hearing date. At this court hearing the court will determine if:
- The person seeking appointment is qualified;
- The case is in the right court;
- The required notices have been given;
- The basic conditions for an appointment have been met; and
That requested appointment provides for the welfare and best interest of the child
Resource: The Guardianship Process
Additional Guardianship Resources
- Coming of Age in Massachusetts: A Legal Resource Guide, 3rd Edition
- Massachusetts Guardianship Association
- Special Needs Law Group of Massachusetts, PC
- When Your Child Turns 18: A Guide to Special Needs Guardianship
- Massachusetts Guardianship Information