Guardianship

Guardianship for Minors
In Massachusetts, a guardianship is the legal process that grants a guardian the authority to care for and make decisions on behalf of a minor child. Unfortunately, there are many instances where a child’s biological parent(s) are unable to care for their children or are deemed unfit by the court, such as when a parent is addicted to alcohol or drugs, or when domestic violence is present in the home, or where a child’s health and education needs are not being met. In many cases, family members or other individuals close to the child(ren) are willing to assume and fill the role of caregiver in place of the biological parent(s).

Although uncommon, establishing guardianship can be relatively simple if both biological parents consent to relinquishing their parental rights either in whole or in part. It is often the case, however, where one or both biological parent(s) contests or opposes the need of establishing a guardianship or appointing a guardian. When a biological parent challenges the guardianship of a minor, the potential guardian(s) (also known as the “petitioner(s)”) must file a petition and prove to the court by clear and convincing evidence that each parent who objects to the guardianship is unfit to have custody of the child. The Petitioner(s) may also request guardianship on an emergency basis as well if the situation warrants such an emergency order. Although a potential guardian may think proving parental unfitness should be easy to do, the courts are very reluctant to take away one’s parental rights. If you or a loved one are seeking to file a petition for guardianship, our attorneys can help walk you through the process carefully and with compassion. Please call us at (978) 637-2048 or email office@heralawgroup.com.

Guardianships for Adults
The process of appointing a guardian for a minor is similar to the process of appointing a guardian for an incapacitated adult. In Massachusetts, there can be both general and limited guardianships. In limited guardianships, which are typically favored by the court, the court recognizes that an incapacitated person may lack the ability to make decisions in some areas of his or her life, but may still have the ability to make personal decisions in other areas. For example, a limited guardianship can be limited to certain decisions, such as medical decisions, or decisions regarding where the person will live, all while the incapacitated person is still able to retain their decision-making power in all other areas not included in the guardianship.

The goal in all guardianships, whether general or limited, is to allow the incapacitated person to participate in decision making to the greatest extent possible. However, in some instances, such as with general guardianships, the incapacitated person no longer has the ability or authority to make any of their own decisions. It is also important to note that a guardian is limited to making decisions for the incapacitated person only, such as those decisions about everyday self-care, health and safety, while a conservator is one who makes legal decisions about the person’s property and financial affairs. Like in guardianships for minors, the potential guardian for an incapacitated adult must be appointed by the court, which can be a lengthy and difficult process. Our experienced attorneys are here to walk you through the process every step of the way.

Rogers Guardianships
Although guardians are granted authority to care for and make decisions on behalf of minor children and incapacitated adults, a guardian does not have the authority to consent to treatment with antipsychotic medication without specific court authorization. To make decisions regarding the use of antipsychotic medication or other intrusive treatments and procedures, the court must give the guardian “Rogers authority.” There is more documentation/forms needed in order to obtain Rogers authority over and above those needed for a standard guardianship without Rogers authority.

At a Rogers guardianship hearing, the individual asking for the Rogers guardianship asks the court to approve extraordinary medical treatment for the incapacitated person. Before the court is able to grant Rogers authority, the court must find that the person is incapacitated and is not competent to give informed consent about being treated with antipsychotic medications, and also must decide whether the person would choose to take antipsychotic medication if they were competent. If you or someone you know are seeking an experienced attorney to help you through this process, please call our office at (978) 637-2048 or email office@heralawgroup.com today.