Services for Cape Cod and Islands, Inc.
Guide to Guardianship,
Conservatorships, Powers of
Attorney, and Other Alternatives
We have designed this pamphlet to answer many of the most common
questions which arise when a person suffers a loss of mental
capacity. We will discuss provisions which a person can make to
address their own potential loss of capacity in the future, as well
as the options which exist for friends and family members when
someone becomes mentally incompetent.
touches briefly on the nature, advantages and disadvantages of
powers of attorney, trusts, joint ownership, health care proxies
representative payee lifelines conservatorships, guardianships and
institutional commitments. It should be noted that these measures
are not mutually exclusive.
for the Future
Powers of attorney
of attorney is the simplest method of providing for one's own future
mental incapacity, and yet it is potentially dangerous. A power of
attorney is an authorization for someone to transact business on
your behalf. It can be specific (e.g., an authorization to sell your
car on certain terms and conditions), or it can be general (a broad
delegation of powers to transact any conceivable business on your
behalf). It used to be that a power of attorney became inoperative,
or void, when the maker became mentally incompetent. Now, however,
most states, including Massachusetts, have either adopted the
Uniform Durable Power of Attorney Act (Massachusetts General Laws
Chapter 20 1 B) or have enacted similar laws, providing that a power
of attorney will survive even though its maker has become mentally
While the durable power of attorney is a useful
safeguard against the potential for future incapacity, it is not
without its drawbacks. Because it empowers someone else (known as
the "attorney-in-fact") to handle your affairs, it has the
same effect as entrusting someone with all of your assets.
Experience has taught us that trusting someone to such an extent can
be risky and can give rise to family disputes. While legal remedies
do exist to address the abuse of a power of attorney, as a practical
matter it is very hard, if not impossible, to recover assets which
are lost or frittered away by an unscrupulous or careless attorney
in-fact. The other problem is that, once the principal is
incapacitated, there is no one charged with overseeing the use or
abuse of the power of attorney. It is possible, though logistically
difficult, to entrust such a power to several persons acting
While a durable power of attorney can be useful,
it is not to be considered a universal device for all situations,
but rather should be entered into with caution.
It is beyond the scope of this pamphlet to explain all of
the possibilities which a trust offers. Our clients do not generally
have access to sufficient funds to create a trust of a size to be of
interest to professional trustees. Given the frequency of questions
which we receive about trusts and their utility for certain
purposes, we offer this short summary.
A person who
creates a trust (the "trustor" or "settlor")
does so by transferring property to the person or institution acting
as trustee, for the benefit of the trustor and/or other
beneficiaries. When planning for the possibility of future
incapacity, several approaches can be used. One can create and fund
a trust presently, and pass the obligations of managing the property
and handling bills to the trustee. Such a trust, called a "living
trust" or an "inter vivos trust", has two advantages:
first, it gives the trustor an opportunity to assess the capacity of
his or her trustee to manage property suitably while the trustor is
still in a position to change the arrangement (assuming the power to
amend the trust instrument has been reserved), and second, it can
proceed unaffected by the future incapacity of the
For those who wish to retain active
control and management of their affairs, but at the same time have a
trustee empowered to handle their affairs should it become
necessary, a so-called "dry trust" with a springing
mechanism is frequently an attractive option. A trust is drawn up
but not presently funded, and at the same time a durable power of
attorney is executed, which empowers the attorney-in-fact to
transfer some or all of the settlor's property into the trust if
some specified event, such as the settlor's incapacity, occurs in
the future. Alternatively, the settlor can name himself or herself
trustee and provide for a successor trustee to assume the trust
powers when and if the settlor becomes incapacitated.
Trusts can be a very useful method of planning for the future, but
again, they should not be entered into lightly. One should always
hire a lawyer to draft the documents, and to explain their workings
in greater detail. As already suggested, one problem which
frequently presents itself is the difficulty of finding an
appropriate trustee, especially for small and medium sized estates.
Probably the most
frequently used method of handling the affairs of the incapacitated
is joint ownership. Spouses usually have both of their names on
almost all of their assets, and this is usually the most appropriate
form of ownership. Individual access to bank accounts can be had by
either joint owner, even if the other joint owner is incapacitated.
For this reason, elderly people frequently will place a child's name
on their account. While this is a simple and effective way of
insuring that the child can continue to pay the parent's bills if
the parent is unable to do so, at the same time it gives the child
unbridled access to the accounts, and should not be given lightly.
Placing a child's name jointly on an asset can also
present problems to the parent if the child incurs debts, is sued,
or even divorced. Since joint ownership means just that, the result
can be that the asset which was once solely the parent's can become
subject to the child's creditors or estranged spouse.
should be noted in passing that both signatures of joint owners are
necessary to transfer real estate or other titled property (such as
securities). Of course, this drawback is often addressed by the
prior execution of a power of attorney to be utilized in the event
of mental incapacity or prolonged absence.
In 1990, Massachusetts enacted General Laws
Chapter 201D, authorizing the use of health care proxies in the
Commonwealth. It permits a person (known as the "principal")
to appoint a "health care agent" who would be authorized
to make health care decisions for the person in the event that he or
she became incapable of making those decisions for themselves. One
can also designate an alternate health care agent to serve if the
primary designee is unavailable or incompetent to serve.
The principal retains all authority to make decisions concerning
treatment until such time as a determination is made that the
principal no longer has the capacity to make or communicate his or
her own health care decisions. That determination must be made by
the attending physician according to "accepted standards of
medical judgment" The physician's determination must be made in
writing, contain an opinion regarding the nature of the principal's
incapacity, its extent and probable duration, and this written
determination must be entered in the principal's permanent medical
The health care agent must be a competent adult,
and cannot be in the employ of a facility where the principal
resides or is receiving care or treatment unless the agent is
related to the principal by blood, marriage, or adoption. Nor can
the agent be one of the two required witnesses to the health care
proxy. A physician can serve as a health care agent, but if so,
cannot serve as the certifying physician. A spouse can be named
agent, but a subsequent divorce or legal separation will serve to
revoke the health care proxy.
Once a determination is
made to invoke the health care proxy, the agent has the authority to
make health care decisions "in accordance with the agent's
assessment of the principal's wishes, including the principal's
religious and moral beliefs, or .. if the principal's wishes are
unknown, in accordance with the agent's assessment of the
principal's best interests." A principal, in making the health
care proxy, can impose limits on this authority, and may also give
some indication as to what his or her wishes are with regard to
certain procedures or treatments. An agent acting in good faith in
the exercise of his or her powers under the proxy is not subject to
civil or criminal liability for making a health care decision.
Obviously, this is a very useful law, and anyone who has
strong feelings concerning future medical treatment ought to avail
himself or herself of it.
with Present Problems
It frequently happens that
sufficient planning has not been done to provide for the onset of
mental incapacity. Often a family member or friend is unaware of a
problem until it is quite advanced, and then he or she maybe at a
loss as to how to deal with the myriad problems which have arisen.
In order to bring some order to this apparent chaos , it is useful
to determine what problems need immediate attention, and which will
require attention in the future. Essentially, there are two basic
areas of concern: the handling of a person's finances, and dealing
with the physical and emotional welfare of the person.
Handling the Incompetent Persons Finances and Necessities of
If a durable power of attorney or a trust exists, it
maybe used for all of the purposes described in the document.
However, an incompetent person is theoretically unable to make a
valid power of attorney or trust. Whether he or she can create such
an arrangement usually depends on the ability to convince a notary
public of his or her capacity to comprehend the document and execute
it of his or her own free will.
If it is simply a matter
of using a person s income to pay bills - and this is commonly the
case when an elderly person is no longer able to remember to write
out checks but can still remember how to get dressed or to take
which pills when, etc. - a representative payeeship can frequently
be a workable solution. A representative payeeship is an arrangement
whereby a person's Social Security and/or Supplemental Security
Income (SSI) checks, or even his or her private pension checks, are
issued to someone else, the "representative payee." This
enables a family member, friend, or social worker to receive the
income and pay the bills of the person.
It also is
possible to have utility companies, or even grocery stores
delivering to the elder on credit, contact a third party prior to
the termination of services or credit to an elderly person.
Sometimes this can be enough to insure that an elder is not placed
Keeping Track of the Elder's General
Many Councils on Aging have telephone reassurance
programs to check in daily with elderly people. A so-called "Lifeline"
can be installed to alert authorities if an elder tumbles or suffers
a stroke or similar accident or illness. Arranging for Meals on
Wheels is another way of providing daily contact, thus helping to
keep track of the elderly person's condition. If a family member,
friend, or neighbor is willing to stay in close touch with the
elderly person, this can be an even better arrangement. We touch
briefly on these matters to suggest that sometimes a network of
assistance programs can be mustered to permit the affected party to
live as normal and unrestricted a life as possible.
all of these possibilities together cannot maintain a person in the
community, there are legal alternatives.
A conservatorship is a more formal and far-reaching
arrangement which is established by order of the Probate Court in
the county of residence of the potential ward (that is, the person
for whom a conservator is appointed.) Unlike a guardianship, a
conservatorship can be voluntarily assented to by the ward. For
example, an elderly person who feels unable any longer to handle his
or her own finances due to his or her advanced age and physical
infirmities can petition the Probate Court to have a conservator
appointed. The petition may also be filed by a family member or
friend. The conservator is bonded and is obliged to account to the
Court annually for the handling of the ward's affairs. In some
instances, this is preferable to a trust, since the oversight of the
Court offers some additional protection to the ward and his or her
heirs. It also has the advantage (or disadvantage in some instances)
of limiting the ward's ability to contract. While this can protect
an elder susceptible to being taken advantage of by family members
or unscrupulous salesmen, some frail elders may chafe at the loss of
their economic freedom.
Unlike a guardian, a conservator
has no power or responsibility over the person of the ward; only the
ward's property falls within the conservator's Jurisdiction.
A guardianship is established by
Probate Court order and confers upon the guardian the authority to
act on behalf of a mentally disabled person with respect to both
personal and financial matters. As in the case of a conservatorship,
the relationship is fiduciary, which means that the guardian is
obliged to act in the best interests of the affected person ("ward"),
and the Probate Court supervises the relationship so as to assure
proper treatment of the ward.
The process of
establishing a guardianship begins with a petition to the Probate
Court in the county where the ward is domiciled (e.g. has his or her
home) or in the county where he or she is resident (physically
present). This petition names the potential guardian (who usually is
also the petitioner), sets out the heirs of the potential ward, and
provides what information is available as to the estate of the ward.
If mental illness or incapacity is alleged as the basis for the
action, the petition should be accompanied by a medical certificate.
Forms for both the petition and the medical certificate can be
obtained at the Probate Court.
Once the petition and the
medical certificate are filed, the Probate Court issues a citation
to be served on the ward and the heirs (unless they have already
consented to the petition). The ward cannot consent, as he or she
might in the case of a conservatorship, since the very basis of a
guardianship case presupposes an inability to given reasoned
consent. However, if a ward, prior to his incompetence, stated in a
power of attorney that he wished the attorney-in-fact to become his
guardian in the event of need, the Court will usually follow that
request so long as it appears consistent with the ward's best
The ward or his or her heirs can state their
objection to the proposed guardianship by filing a response in the
Probate Court prior to the return day. After this, a hearing is
held. In the event of a contested hearing, the Court will almost
always appoint a guardian ad litem. This is a disinterested person
who investigates the situation on behalf of the Court and makes
recommendations as to the need for a guardianship, and the
appropriateness of the proposed guardian. The ward may secure legal
representation, and if he or she is without funds to retain an
attorney privately, can ask the Court to appoint one, though there
is no basic entitlement to counsel as in most criminal actions.
Legal Services for Cape Cod and Islands, Inc. can and will represent
eligible potential wards in contested guardianship actions.
Once a guardianship is established, the Court sets the bond
for the guardian, and the guardian must file an inventory, followed
by periodic accountings for the duration of the guardianship. If the
guardian is to be paid (as he or she usually is), the fee (which
usually comes out of the assets or income of the ward) must be
approved by the Court.
A guardianship can be ended by a
further hearing in the Probate Court, which establishes that the
need for a guardian no longer exists. Where the guardianship was
established because of mental weakness or deterioration due to
advanced age or age-related infirmity, rather than mental illness or
insanity, the condition calling for appointment of the guardian is
unlikely to disappear.
Obviously, a guardianship is a
cumbersome procedure for the potential guardian, as well as
difficult, possibly even devastating, for the potential ward. In
addition, appointment of a guardian strips the ward of many of the
liberties which we ordinarily enjoy as citizens, such as the right
to contract, marry, spend money, make decisions about their own
care, or in almost every instance, write a new will. Alternative,
less restrictive, means should always be investigated before a
guardianship petition is filed.
If you are concerned about someone who has
become a threat to him or herself or others, you may wish to
consider taking the serious step of seeking his or her commitment to
a mental hospital. Under our state's scheme for commitment to public
and private mental hospitals, which is covered by Massachusetts
General Laws Chapter 123, a patient can enter either as a voluntary
patient accepted by the facility or under a ten-day emergency order
of involuntary commitment.
Under a voluntary
hospitalization, an individual (or guardian who has specific
authorization from a Probate Court) seeks admission to the facility.
The facility can retain the patient indefinitely or discharge the
patient if it determines discharge is in the best interest of the
patient. A patient on a voluntary admission who wishes to leave must
give the facility three days' notice. The facility can either
discharge the patient, or, within the three-day period, apply to a
District Court for involuntary commitment of the patient. The
facility can then retain the person until the District Court
If a person or guardian is not agreeable to a
voluntary commitment, a special provision in state law provides an
emergency procedure for involuntary hospitalization for a person if
there is a likelihood of serious harm because of alleged mental
illness. This emergency hospitalization can be initiated in several
ways. First, a qualified physician or qualified psychologist can
apply for the ten-day commitment., Certain physicians are designated
by the Department of Mental Health to make commitments. If any other
physician or psychologist seeks commitment of a person, the
institution will make a separate evaluation to see if admission is
appropriate. Second, a police officer can apply for a ten day
commitment. Again, the facility will do an evaluation to decide
whether the emergency commitment is appropriate. Finally, a District
Court can order a ten-day emergency commitment. Any person can apply
to a District Court for such an order. The judge will informally
hear the reason for the application, and, if convinced, may issue a
warrant of apprehension to bring the person to court. The person
will then be examined by a physician authorized by the Department of
Mental Health. The court uses the physician's evaluation in deciding
whether to order a person committed for a ten-day emergency
hospitalization. As a practical matter, if you are pursuing this
route, start early in the day as it takes some time to arrange the
evaluation and hearing.
Once the ten-day emergency
commitment has been initiated, or a patient on a voluntary admission
indicates that he or she wishes to leave, it is up to the
institution to decide whether to seek an involuntary commitment. If
it does, the patient is entitled to a hearing within fourteen days
of the filing of the petition. The patient has a right to be
represented by a lawyer at the hearing, and if the patient is
indigent, the court must appoint counsel unless the patient refuses
assistance. At the hearing, the institution has the burden of
establishing that the patient is mentally ill, that there is a
substantial risk that the person will harm himself, herself, or
others, that a commitment is feasible under the circumstances, and
that there is no less restrictive alternative.
As we hope
to have made clear in the preceding pages it is preferable to make
one's own plans and arrangements for the potential of future
incapacity. Such arrangements can be viewed as insurance, something
that you hope you never need but are glad to have if such a need
While we at the Elder Law Project do not
have the resources to draft trusts for individuals, we are glad to
have discussions with individuals who may have questions about their
own particular needs and circumstances. We cannot emphasize enough
that you should have all of your questions answered before you take
steps which may be irrevocable or hard to change.
situation develops where a need for substituted judgment for a
friend or family member is needed, you should feel free to contact
us as well. We cannot represent petitioners for guardianships or
conservatorships, since we see our role as representing potential
wards who may oppose such proceedings. We nevertheless will be glad
to try to answer your general questions about options and
procedures, and, to try to make appropriate referrals.
In closing, we would like to remind our readers that none of the
legal procedures described briefly above ought to be undertaken
without legal counsel. The ramifications of all such procedures are
such that they should not be undertaken lightly, or without
professional advice and representation.
wi'th special thanks to
Services for Cape Cod and Islands, Inc.
Islands and Administrative Office
460 West Main Street
Hyannis, Massachusetts 02601
represents low-income and elderly people who live in Barnstable,
Dukes, Nantucket and Eastern Plymouth Counties, including the
Plymouth towns of Carver, Duxbury, Halifax, Hanson, Kingston,
Lakeville, Marion, Marshfield, Middleborough, Pembroke, Plymouth,
Plympton, Rochester and Wareham.
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