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
What you need for File for guardianship of an incapacitated person
The Probate and Family Court may appoint a guardian to make some or all decisions for an incapacitated person. The person asking to be named guardian is called the petitioner, and the person believed to be incapacitated is called the respondent. To request to become a guardian for an incapacitated person, you'll first need to determine the type of guardianship you want to file for: plenary (complete) or limited. You can learn more about the types of guardianship on the responsibilities of a guardian of an incapacitated person page.
Next, you'll need to file:
- Petition for Guardianship (MPC 120) For plenary guardianship, you must check the box explaining why limited powers aren’t appropriate. For limited guardianship, you must include the Exhibit that lists proposed Limitations to Powers.
- Medical Certificate (MPC 400) This needs to be completed and signed by a registered physician, licensed psychologist, or certified psychiatric nurse clinical specialist. The examination of the respondent must have been within 30 days of when the petition is filed.
- Bond (MPC 801) The Bond confirms that you agree to submit to the jurisdiction of the court that is issuing the Letters of Appointment as guardian. You can request that the bond be without sureties, with personal sureties, or with the support of a corporate surety bond. In guardianship matters, the surety is usually waived. The bond must include the estimated value of the respondent's real estate and personal estate.
Depending on the circumstances, you may also need:
- Clinical Team Report (MPC 402) if the respondent has an intellectual disability. The report needs to be completed by a physician, licensed psychologist, and a social worker. The examination of the respondent must have been within 180 days from when the petition is filed.
- Special requirements if the respondent is treated with antipsychotic medications. This treatment requires special court authority and is known as having Rogers Authority. If Rogers Authority is requested:
- A lawyer will be appointed by the court
- You'll need to submit Findings and a Treatment Plan for approval by the court
- An annual review date will be included in the Decree
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Feesfor File for guardianship of an incapacitated person
There may be a fee for service of process, which can vary.
If you're appointed guardian, a copy of the "letters of appointment" will be given to you for free.
Resource: The Guardianship Process
Additional Guardianship Resources
- Coming of Age in Massachusetts: A Legal Resource Guide, 5th 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