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Massachusetts law outlines guardianships for both minors and incapacitated adults. Under Massachusetts law, guardianship of a minor, called the “ward,” gives the guardian the powers and responsibilities of a parent. Guardianship of an incapacitated adult gives the guardian the authority to make decisions and act on behalf of the ward, either in a limited or total (called “plenary”) capacity. These guardianships must go through a legal process with the court to be issued. Guardians are expected to act in the best interests of their wards in all matters.
The law office of Attorney Andrew H. P. Norton represents individuals both seeking and contesting guardianships of minor and incapacitated adults. In the matter of incapacitated adults, courts will decide whether guardianship is appropriate based on the incapacitated person’s medical diagnosis and documentation as supplied by medical professionals. Guardianships of minors are based on various situations in which the child does not have parental care. Our firm can help you document your case in both of these types of proceedings through the courts.
Guardianships for Minors in Massachusetts
Under Massachusetts law Section 5-109, guardians for minors have the rights and responsibilities of providing the ward with “support, care, education, health, and welfare.” Guardians are expected “to act at all times in the ward’s best interest and exercise reasonable care, diligence, and prudence.”
Under Massachusetts law Section 5-204, a guardian may be appointed by the court in the following situations:
- The child’s parents are deceased or incapacitated
- The child’s parents consent to the guardianship
- The child's parents’ parental rights have been terminated
- The child’s parents have signed a voluntary surrender
- The court finds the parents, jointly, or the surviving parent, to be unavailable or unfit for custody
Anyone can petition a juvenile court, probate, or family court to be appointed as a guardian for a minor. The only qualifications are that the person seeking the guardianship is at least 18 years of age, lives in the U.S., and does not have a criminal record that involves child neglect or abuse. Your appointment as a guardian is at the discretion of the judge after hearing the supporting evidence of your petition. If the minor is more than 14 years old, the judge can appoint someone of the minor’s choosing unless it is considered that the person chosen would not be in the best interests of the minor.
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Guardians for incapacitated adults can be appointed by judges in both probate and family courts. The powers, duties, rights, and restrictions of these guardians are outlined in Massachusetts law Section 5-209. You cannot automatically become the guardian of an incapacitated even if you are the parent of the person without going through the court.
Incapacitated persons are those who cannot make decisions about their lives, such as financial, medical, or daily living matters. They are unable to provide for their physical health, safety, or care. These individuals may be intellectually disabled, have a mental illness, a degenerative health condition, have suffered a traumatic brain injury, or may be a child with a disability who has reached the age of 18.
A guardian for an incapacitated adult who is given plenary power is given the ability to make any decisions regarding the person’s life, from where he or she shall live, his or her daily living needs, financial matters, health care, and more. Guardians who are given limited guardianships are given the authority to act on behalf of the person in the specific areas approved by the court. For example, this may be only in the matter of medical treatment. These guardians are expected to act in the best interests of the ward and to take the ward’s values and wishes into consideration when acting on their behalf.