Guardianship cases come in all shapes and sizes, primarily as the guardian of a minor, or guardianship of an adult filed through a Petition for Guardianship in one of the Probate and Family Courts in Massachusetts.
Guardianship of a Minor
Guardianship of a minor is a legal mechanism whereby anyone who is 18 years of age or older, competent, and living in the United States can become the legal guardian of a minor child in his or her care if:
- The child’s parents are unfit mentally.
- Unavailable to care for the minor child.
The guardian must file a Petition for Guardianship and supporting documents in the probate court in the county in which the child resides. For example, if a child resided in Mansfield, MA the petition would be filed at the Bristol County Probate and Family Court. A child generally, except under emergency circumstances, has to have resided for six months in Massachusetts for the Court to have jurisdiction to hear a Petition for Guardianship.
A guardian must prove to the Court that:
- He/she is fit to serve as the child’s legal guardian
- Pass a criminal background check
- The guardian has had any involvement with the Massachusetts Department of Children and Families.
Guardianship is not a permanent legal relationship between a guardian and a child. A parent or other interested party can always petition the Court to have the guardianship removed or the child turns 18 years of age.
Powers & Responsibilities of a Guardian
A guardian has almost the same powers and responsibilities as the parent regarding the child’s support, care, education, health, and welfare. The guardian can make routine decisions concerning the child’s day to day living as well as the child’s education, medical treatment, and religious practices.
A guardian’s responsibilities end when the guardianship is removed as the result of the child’s marriage, death or adoption. Also, a Court determines that the guardianship is no longer necessary.
Guardianship of an Adult
Guardianship of an adult becomes necessary when an adult is incapacitated, which is legally defined as an adult who has a clinically diagnosed medical condition resulting in an inability to receive and evaluate information, and make or communicate decisions.
Guardianship of an adult or elder is appropriate when the individual has been diagnosed with Dementia, Alzheimer’s, or some other mental health condition which prevents the adult/elder from making effective decision concerning their everyday self-care, health or safety. Guardianship may also be appropriate for a friend or family member with a brain injury, chronic illness or physical impairment.
Any qualified adult interested in the welfare and well-being of the incapacitated adult can file a Petition for Guardianship seeking a Court Order protecting the adult/elder’s rights and independence and arranging for care and services.
A Guardian makes personal and medical care decisions for an incapacitated adult as defined in the Court’s Decree and Order only as necessary to protect the adult from harm. Some examples include, applying for health insurance and other benefits; arranging for ordinary medical treatment and doctor visits, the adult’s everyday basic needs and safety and the social and recreational needs of the adult; or paying the adult’s expenses using the adult’s income.
The court can also order a Limited Guardianship if an adult lacks the ability to make decisions in some areas, but still has the ability to make personal decisions in other areas. The court’s primary concern in any guardian appointment is to preserve the adult’s rights and liberties to his/her fullest extent and limit the guardian’s decision making powers to areas where the adult can no longer make effective decisions.
Need Help Becoming a Guardian in Massachusetts?
For additional information about filing a Petition for guardianship of a minor or incapacitated adult in Massachusetts, contact one of our Massachusetts guardianship lawyers serving the Westwood, Franklin, Walpole, and Millis, Massachusetts, areas.