It is an extremely wise idea to execute both a health care proxy and a durable power of attorney before an individual needs to do so to make sure that the individual’s needs are met in the event that incapacity becomes a reality.  Competency is required to execute both a heath care proxy and a power of attorney.  In the event that an individual becomes incompetent but does not have a durable power of attorney or a health care proxy, it becomes necessary for another individual to initiate a petition for guardianship to manage the incapacitated individual’s affairs.  Should it become essential to appoint a guardian over an incapacitated individual, it often becomes essential to consult about matters with an experienced and knowledgeable lawyer concerning matters.

Types of Guardianship Cases
There are, generally, two types of guardianship cases: guardianship of a minor and a guardianship of an adult.  A petition of guardianship of a minor is usually filed by any non-parent adult with whom a minor child resides and who takes care of said child.  A petition for guardianship of an adult involves an adult who is deemed to be incapacitated and needs his or her financial and health care affairs managed by another.

How Guardianship Cases Proceed
Prior to filing a guardianship case over an incapacitated adult, an individual must be determined to be legally incapacitated. The court then decides which party should be nominated as guardian of the incapacitated individual. Any individual can petition to act as guardian of the incapacitated individual.  Any such petition must be accompanied by a medical certificate completed by a physician who examined the incapacitated individual.  Guardianship Once guardianship is awarded, there are only several types of situations that may end the guardianship including resignation or revocation by the court of the guardianship, the death of the guardian or incapacitated individual, or the restoration to competency by the incapacitated individual.

Powers of a Guardian of an Incapacitated Adult
A guardian is authorized by a court with several types of powers including the authorization to decide where the incapacitated individual will live and what kind of health care the incapacitated individual will receive. In some cases, guardianship can require managing the incapacitated individual’s finances which requires maintaining accurate records of the incapacitated individual’s accounts in addition to reporting about the incapacitated individual’s accounts in a timely manner.

The Removal of a Guardian
In some situations, other individuals who know the incapacitated individual may contest the guardian that is appointed.  In these types of situations, seasoned legal counsel can prove essential for either of the parties.  Another situation may involve a previously incapacitated individual who is no longer incapacitated.  Finally, in a guardianship of a minor, a parent, who may previously has either been found unfit or consented to guardianship, may seek to return the minor child into his or her custody.

Situations When a Guardian is Appointed
Anyone over the age of eighteen who suffers from mental illness, mental deficiency, or any other condition that makes an individual unable to care for themselves may require the appointment of a guardian.

Who Can Be Appointed a Guardian
Courts tend to first consider a variety of individuals to act as guardian including adult children and other blood relatives of the incapacitated individual to act as guardian. Any individual, however, may apply to serve as guardian of an incapacitated individual. It is worth remember that it will be up to the court to make the final decision regarding guardianship.

Massachusetts Resources for Guardianships

Mass Guardianship Association – Guardianship of an Adult

Limitations to Guardianship – For Judges & Attorneys

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