Guardianship

Guardianship for Minors

In Massachusetts, guardianship is the legal process that grants a guardian authority over a minor child. This authority covers the child’s care and major decisions. Unfortunately, a child’s biological parents sometimes cannot care for their children, or a court deems them unfit. This can happen when a parent struggles with alcohol or drug addiction. It can also happen when domestic violence occurs in the home, or when a child’s health and education needs go unmet. In many of these cases, family members or other people close to the child step in as caregivers. This differs from a child custody dispute between two biological or legal parents.

Establishing guardianship can be relatively simple, though uncommon, when both biological parents consent to relinquishing their parental rights, in whole or in part. More often, one or both biological parents contest or oppose the guardianship. When a biological parent challenges the guardianship of a minor, the potential guardian (the “petitioner”) must file a petition. The petitioner must then prove, by clear and convincing evidence, that each objecting parent is unfit. This proof must satisfy the court. A petitioner may also request guardianship on an emergency basis if the situation calls for it. Proving parental unfitness may sound straightforward. In practice, courts remain very reluctant to take away a parent’s rights. If you or a loved one wants to file a petition for guardianship, our attorneys can walk you through the process carefully and with compassion. In some cases, a Guardian ad Litem investigation may also come into play. Please call us at (978) 637-2048 or email office@heralawgroup.com.

Guardianships for Adults

Appointing a guardian for a minor follows a process similar to appointing a guardian for an incapacitated adult. Massachusetts recognizes both general and limited guardianships. Courts typically favor limited guardianships. In a limited guardianship, the court recognizes that an incapacitated person may lack decision-making ability in some areas of life. That same person may still retain the ability to make personal decisions in others. For example, a limited guardianship might cover only certain decisions, such as medical care or where the person will live. The incapacitated person keeps their decision-making power in every other area.

Every guardianship, whether general or limited, aims to let the incapacitated person participate in decision-making to the greatest extent possible. In some cases, though, such as general guardianships, the incapacitated person no longer has the ability or authority to make any of their own decisions. It’s also worth noting the distinction between a guardian and a conservator. A guardian makes decisions for the incapacitated person’s everyday self-care, health, and safety. A conservator, by contrast, manages the person’s property and financial affairs. As with guardianships for minors, the court must appoint the guardian for an incapacitated adult. That process can take a long time and prove difficult. Our experienced attorneys will walk you through it every step of the way.

Rogers Guardianships

Guardians hold the authority to care for and make decisions on behalf of minor children and incapacitated adults, but that authority has limits. A guardian cannot consent to treatment with antipsychotic medication without specific court authorization. To make decisions about antipsychotic medication or other intrusive treatments and procedures, the guardian must obtain “Rogers authority” from the court. Obtaining Rogers authority requires additional documentation and forms, beyond what a standard guardianship needs.

At a Rogers guardianship hearing, the person requesting Rogers authority asks the court to approve extraordinary medical treatment for the incapacitated person. Before granting that authority, the court must find that the person is incapacitated. The court must also find that the person cannot give informed consent about antipsychotic medication. Finally, the court decides whether the person would choose to take the medication if they were competent. If you or someone you know needs an experienced attorney to help with this process, please call our office at (978) 637-2048 or email office@heralawgroup.com today.

Practice Areas 209C Actions in Family Court Alimony (Spousal Support) Appeals Child Custody Child Support Contempt Actions in Family Law Divorce Domestic Violence & Restraining Orders Estate Planning Modification Actions in Family Law Guardianships Guardian Ad Litem Investigations LGBTQ+ Representation Mediation & Collaborative Law Paternity Actions in Family Law Prenuptials & Postnuptials Probate Law

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