1. Lawyer of the Day Training: Guardianship and Conservatorship
Sheriece M. Perry, Esq.
Senior Manager of Support Services Massachusetts Trial Courts
(617) 1

2. Suggested steps to screen clients
Guardianship of minors:
Where is the minor living? Where was the minor living before?
Where are the minor’s parents?
Why are the parents unable to care for the minor?
Why does petitioner need guardianship of the minor?
Are there other alternatives besides guardianship?
Guardianship of Adults:
Does petitioner have a valid Medical cert. or CTR?
Where is the respondent living?
Why does the petitioner need guardianship?
Is petitioner the health care proxy or have POA?
Does petitioner need to admit respondent to skilled nursing facility or administer anti- psychotic medication?
Conservatorship:
Does the respondent own real/personal property? Does respondent need to file a lawsuit?
Why does the petitioner need control over respondent’s estate? 2

3. Terminology
“Petitioner” is the term used to refer to an individual filing for guardianship over a ward or incapacitated person.
“Ward” is the term used to refer to the minor child subject to a guardianship.
“Incapacitated person” is the term used to refer to a person that does not have the legal capacity to make their own decisions.
“Respondent” is a generic terms that refers to any subject of a guardianship.
“Guardian” is the term used to refer to a petitioner that has been appointed by the Court as the guardian over a respondent and/or the respondent’s financial affairs.
“Mental retardation” has been removed from all Massachusetts statutes and replaced with “intellectual disability.” 3

4. What is Guardianship? Two Types of Guardianship
Of a Minor (a child under 18)
Absence of parent(s).
Death of parent(s).
Parent is unable or unavailable to care for the child.
Parent is unfit.
Guardianship may be unnecessary if:
Caregiver has parental authorization.
Parental absence is short term.
Guardian is like a parent
Of a Person
Incapacitated or Intellectually Disabled Person
Mental illness
Guardianship removes some of the IP’s autonomy and decision- making ability 4

5. What is Conservatorship?
Conservatorship is control over an incapacitated person’s finances.
A individual can petition to be guardian and conservator over a minor or an adult.
Typically, an individual petitions to be guardian and conservator over a minor or adult at the same time. 5

6. Guardianship and Conservatorship
A Guardian/Conservator must be appointed by a Probate Court.
A Guardian may be nominated by a minor age 14 or older, or IP.
Guardianship grants the guardian authority to care for, and to make decisions on behalf of, a minor child (the ward), or on behalf of an incapacitated adult (IP).
Conservatorship grants the conservator the authority to make decisions regarding the protected person’s finances.
The Court must approve any resignation or order any removal of a guardian/conservator.
All interested parties must receive notice. 6

7. Guardian’s Financial Powers
Guardian may become the representative payee and collect the respondent’s social security benefits from the Social Security Administration.
Guardian can learn of assets and income, but will not have authority to spend or distribute any assets or income.
Due to Guardian’s financial powers, guardian is required to file a bond for temporary and permanent guardianship.
Surety is required on the bond unless the Court determines that it is in the respondent’s best interest of to waive surety or to require additional sureties. “Surety” is a guarantor of payment or performance if another fails to pay or perform.
Surety is routinely waived on all guardianship bonds.
Mass. Gen. Laws c. 190B, §§ 5-208,
Guardian can collect up to $5,000 per year for a minor ward. (Welfare and SSI usually do not apply) Mass. Gen. Laws c. 190B, § 7

8. Duties of Guardian A Guardian of a minor or an IP:
is responsible for a respondent’s support, care, education, health and welfare;
shall act in respondent’s best interest; and
shall exercise reasonable care, diligence and prudence.
Mass. Gen. Laws c. 190B, §§ 5-209, 5-309, 8

9. Duties of Guardian A Guardian of an IP must:
preserve an incapacitated person's right of freedom of religion;
exercise authority only as necessitated by the incapacitated person’s mental and adaptive limitations; and
encourage the incapacitated person to participate in decisions, act on his or her own behalf; and develop or regain the capacity to manage personal affairs
Mass. Gen. Laws c. 190B, §§ 5-209, 5-309, 9

10. Immunities of Guardian
Guardian is not personally liable for the respondent’s expenses.
Guardian is not liable to third persons for the acts of the incapacitated person by reason of the relationship.
Mass. Gen. Laws c. 190B, §
Note: Still, guardian could be “responsible” for actions of the IP in the sense that it could jeopardize public housing, custody. 10 10 10 10

11. Guardianship of Minor: Grounds
Court may appoint permanent guardian of a minor if:
Parents are dead or incapacitated;
Parents consent;
Parental rights have been terminated by a court order;
Voluntary surrender signed by parents; or
Court finds parents (jointly, or the surviving parent) unavailable or unfit to have custody.
Mass. Gen. Laws c. 190B, §§ and 11

12. Guardianship of Incapacitated Person: Grounds
Person must be “Incapacitated”:
An individual, who for reasons other than advanced age or minority,
has a clinically diagnosed condition
that results in an inability to receive and evaluate information or make or communicate decisions,
to such an extent that the individual lacks the ability to meet essential requirements for:
physical health,
safety, or
self-care,
even with appropriate technological assistance.
Mass. Gen. Laws c. 190B, § 12

13. Guardianship of Incapacitated Person: Grounds
Or person must be “Intellectually Disabled”:
An individual with significantly sub average intellectual functioning (usually IQ of 70 or less) with limitations in two or more of the following adaptive skills:
communication,
self-care,
home living,
social skills,
community use,
self-direction,
health and safety,
functioning academics,
leisure, and
work.
Mass. Gen. Laws c. 190B, § 13

14. Why Guardianship for an Incapacitated Person?
Person becomes incapacitated or is intellectually disabled;
Person unable to make decisions regarding his/her own health, safety, self-care;
Decision-making vacuum;
In MA, no statute authorizing medical providers to look to family members to make medical decisions (case law allows it in emergencies) and no indication of who should be given priority;
Adult does not have a health care proxy or durable power of attorney;
Decisions need to be made;
Disagreement among family members regarding course of treatment; or
Need to make extraordinary medical decisions (e.g., anti- psychotics, discharge to nursing facility, amputations);
Designed to balance protection of the individual with his/her independence and self-reliance to the extent possible. 14

15. Examples of When Guardianship May be Necessary for an IP
Elderly parent with degenerative health condition – cannot consent to treatment or placement in nursing facility;
No Health Care Proxy or Durable Power of Attorney
Family member who suffered traumatic brain injury – cannot consent to participation in ongoing medical care and rehabilitation;
Disagreement among family members
Disabled child turning 18 – parents can no longer make decisions without court authority
Child entitled to public education through age 22 15 15 15

16. When is Guardianship Unnecessary for an IP?
Person has physical or other disability but retains decision-making ability.
Person has Health Care Proxy and Durable Power of Attorney and there is no disagreement over care plans.
Person is making “poor” decisions or decisions with which family disagrees, but person is competent to make decisions.
Person retains ability to make decisions but only with assistance (technological, medical, etc.). 16

17. When is Conservatorship necessary?
Need authority to bring a tort action on the “protected person’s” behalf.
Protected person owns property that needs to be conveyed or sold.
Protected person is beneficiary of an estate (example: a parent dies and leaves a life insurance policy for the minor child).
Individuals interested in petitioning to be a conservator should be referred to the private bar for representation. 17

18. Guardianship Process

19. Who May File Petition
Anyone interested in the respondent’s welfare, including:
the minor, or
the IP.
Mass. Gen. Laws c. 190B, §§ 5-206, and 19

20. Proper Venue The county in which: Mass. Gen. Laws c. 190B, § 5-105.
the respondent resides at the time the petition is filed;
a will nominating a guardian was or could be probated; or
an incapacitated person is admitted to a facility pursuant to a court order.
Mass. Gen. Laws c. 190B, § 20

21. Priorities The Court shall appoint as guardian a person nominated by:
parental or guardian appointment,
the minor (age 14 or older),
the health care proxy or power of attorney of IP, or
the will of a minor's parent
the will of an IP’s spouse or IP’s parent.
Mass. Gen. Laws c. 190B, § 21

22. Fee waiver No filing fees for guardianship petitions.
$255 Filing fee for conservatorship petition.
Cost of service of process varies.
$25 for each certified copy of Letters of Appointment.
Petitioner is eligible for a fee waiver if s/he receives cash public assistance.
Petitioner is also eligible if s/he has a net income of less than 125% of the poverty guidelines or is otherwise unable to pay any fees.
Filing fee for conservatorship is NOT waived by Court. 22 22 22 22

23. Who May Not Be Guardian
Court shall not appoint as guardian any person who is currently being investigated or has charges pending for:
committing an assault and battery that resulted in serious bodily injury to the respondent, or;
neglect of the respondent.
Mass. Gen. Laws c. 190B, § 23

24. Appointment of Counsel for Any Respondent
Court must appoint counsel for the respondent if:
the respondent, or someone on his/her behalf, requests appointment of counsel; or
the Court determines that the respondent’s interests “are or may be inadequately represented.”
Anyone can file a “Request for Counsel.”
Mass. Gen. Laws c. 190B, § 24

25. Appointment of Counsel for Parent of Minor Child in Initial Petition
Court must appoint counsel for the parent of a minor child if:
the parent is subject to a proceeding where someone other than a parent seeks to have himself or herself appointed as the child’s guardian; and
the parent cannot afford to pay for an attorney
A parent must file an “Application for Appointment of Counsel For Parent of Minor Child.”
Guardianship of V.V., 470 Mass. 590 (2015).
Mass. Gen. Laws c. 190B, § 25

26. Appointment of Counsel for Parent of Minor Child in Removal Petition
Court may appoint counsel for the parent of a minor child:
the parent is subject to a proceeding where he or she seeks to regain custody of the child;
the parent cannot afford to pay for an attorney; and
the parent presents a meritorious claim for removal
A parent must file an “Application for Appointment of Counsel For Parent of Minor Child.” Some other logistics have been worked out
L.B. et al. vs. CJ P&F Court., 474 Mass. 231 (2016).
Mass. Gen. Laws c. 190B, § 26

27. GAL or FSO investigation
Court may appoint a Guardian Ad Litem, or order a Family Service Officer (sometimes called a Probation Officer), to investigate the condition of the respondent and make appropriate recommendations to the Court.
Mass. Gen. Laws c. 190B, § 27

28. Respondent’s Right to Attend Hearing
Respondent (including minor 14 and older) has right to:
Be present;
Be represented by counsel;
Present evidence;
Cross-examine all witnesses; and
Request that the hearing be closed.
Mass. Gen. Laws c. 190B, § 28

29. Objections
An interested person may file an objection to temporary or permanent guardianship.
File an “Appearance and Objection.”
Mass. Gen. Laws c. 190B, §§ 5-203,
If objections arise, case becomes contested. 29

30. Steps to Obtain Guardianship
File Petition for Guardianship/Conservatorship with Court
For Temporary Guardianship (optional)
Give 7 days’ notice of hearing on Verified Motion for Appointment of Temporary Guardian
Hearing for Temporary Guardianship
Temporary guardianship lasts 90 days
Provide Post-Appointment Notice
For Permanent Guardianship
Service of Process for Permanent Guardianship
Schedule and attend hearing for Permanent Guardianship (if not already scheduled)
Reporting to the Court 30

31. Service of Process
Notice Requirements

32. Notice requirements for Temporary Guardianship/Conservatorship
7 days notice before the hearing. Court may shorten or waive the notice requirements in an “immediate emergency situation.”
Serve copy of Verified Motion for Appointment of Temporary Guardian.
IN HAND to:
Incapacitated person
Minor aged 14+ (if minor did not provide notarized consent)
by regular, first class mail to:
Parents of minor ward
All interested parties, (everyone named in the petition)
U.S. Veteran’s Administration, if applicable,
Department of Developmental Services, if respondent is intellectually disabled.
Proof of mail is required for pro se litigants but not for attorneys
Mass. Gen Laws c. 190B, §1-401; Mass. R. Probate Ct. 29B. 32

33. Post-Appointment Notice of Temporary Guardianship/Conservatorship
Petitioner must serve a “Notice of Appointment of Temporary Guardian” on all interested parties by regular mail.
Interested party has right to file a motion to vacate temporary guardianship.
A motion to vacate temporary guardianship is heard de novo.
Mass. R. Probate Ct. 29B. 33

34. Notice Requirements for Permanent Guardianship/Conservatorship
14 days notice before the hearing. Serve copy of Petition and copy of citation (“Notice and Order”).
IN HAND to:
Incapacitated person;
Minor 14+ (if minor did not provide notarized consent); and
Parents of minor child.
by regular, first class mail to:
all interested parties, (everyone named in the petition);
U.S. Veteran’s Administration, if applicable; and
Department of Developmental Services, if respondent is intellectually disabled.
Proof of mail is required for pro se litigants but not for attorneys.
Mass. Probate Ct. 29B. 34

35. Service by Publication
If an interested party is parts unknown, or cannot be identified (for example, minor child’s father), the Court will provide instructions for publication of a notice in a newspaper selected by the Court.
A fee waiver (if the petitioner is eligible) will cover the cost of publication in a Massachusetts newspaper. 35

36. Permanent Guardianship/Conservatorship: Return of Service
File the following with Court:
original Notice and Order with signed and completed return of service;
In cases with service by publication, also file:
original uncut tear sheet from newspaper; and
returned, undelivered, certified mail to all interested parties or signed green cards. 36

37. Limitations on Guardianship

38. Nursing Facilities
No guardian has the authority to admit an IP to a nursing facility without specific court order.
The Court must first determine that the admission is in the person’s best interest.
There is a new law that allows a guardian to admit an IP to a nursing facility for 60 days or less.
Mass. Gen Laws c. 190B, §5-309 38

39. Nursing Facilities
A court appointed guardian may admit an IP to a nursing facility, without prior court approval, for 60 days or less if:
A physician recommends such admission;
IP and any interested person does not object;
On or before the date of admission, a written notice of intent has been filed by the guardian with the court;
A copy of the written notice has been served, prior to filing, IN-HAND on the IP and provided to the nursing facility, and counsel for IP; and
IP is represented by counsel, or if not already represented, counsel is appointed by the Court forthwith. 39

40. Commitment to a Psychiatric Facility
A Probate Court cannot admit the respondent to a psychiatric facility.
Commitment proceedings must be brought in the District Court.
Mass. Gen. Laws c. 190B, § 5-306A. 40

41. Mental Illness and Treatment with Antipsychotic Drugs
Respondents who are mentally ill are sometimes treated with antipsychotic drugs.
Treatment with antipsychotic drugs requires special court authority. 41

42. Substituted Judgment
The Court authorizes treatment to which the respondent would consent, if not incapacitated.
Rogers v. Commissioner of Dep’t of Mental Health, 390 Mass. 489 (1983).
Counsel is provided for respondent.
Mass. Gen. Laws c. 190B, § 5-306A. 42

43. Health Care Proxy Guardian cannot revoke a Health Care Proxy.
The decision of the health care agent takes precedence over that of a guardian (absent court order to the contrary).
Mass. Gen. Laws c. 190B, § 43

44. Court Appointment of Guardian: Monitoring by Court
Guardian of Minor must file an “Annual Report of Guardian of Minor.”
Guardian of an IP must file a “Care Plan/Report” within 60 days of appointment, and annually thereafter.
Court can issue a “Notice of Non-Compliance” for failure to file timely reports.
Guardian must notify the Court if the IP becomes capable of exercising rights previously limited.
Mass. Gen. Laws c. 190B, §§ 5-209, 44

45. Termination of Permanent Guardianship
Guardianship terminates upon:
Death of guardian, IP, or ward;
Resignation of guardian (with Court approval);
Removal of guardian by Court, upon filing of petition by respondent or any person interested in the welfare of the respondent;
Determination that IP is no longer incapacitated; or
Adoption, marriage or attainment of majority of minor ward.
Mass. Gen. Laws c. 190B, §§ 5-210, 45

46. Termination of Permanent Guardianship
Forms for IP:
“Medical Certificate for Termination of Guardianship and/or Conservatorship”
“Petition for Removal – Resignation – Termination of Guardian and/or Conservator” for Adults
“Petition to Expand – Modify – Limit the Powers of a Guardian and/or Conservator”
Forms for Minors:
“Petition to Resign as Guardian of Minor”
“Petition for Termination of Guardianship of Minor” 46

47. Guardianship of Minors

48. Minor must nominate his Guardian
A minor, 14 and older, must nominate his/her guardian.
Petition cannot be filed without the minor’s notarized nomination and consent.
Mass. Gen. Laws c. 190B, §§ 48

49. Required Forms to File Petition for Appointment of Guardian of Minor*
Affidavit Disclosing Care or Custody Proceedings*
Notarized Waiver and Consent to Petition for Guardianship of Minor (if possible)
Notarized and Verified Consent or Nomination by Minor
Military Affidavit (required in Suffolk County)*
Public Assistance Affidavit*
Guardianship Intake Sheet (varies by County)*
Fee Waiver (Affidavit of Indigency and Court Determination re: Costs and Fees), if applicable*
Bond*
If necessary:
Verified Motion for Appointment of Temporary Guardian for a Minor
* Requires petitioner’s signature 49

50. Possible Substitute for Guardianship: Caregiver Authorization
Authorizes a designated caregiver with whom the minor resides to exercise “concurrent parental rights” re: the health care and education of minor. No notice to other parent.
Parental decision supersedes caregiver’s decision.
Valid for up to two years; can be re-authorized.
No Court involvement.
Signed by parent, two witnesses and notary; signed by caregiver.
Possible uses: step-parents, informal kinship care, live- in nanny, or child temporarily living with relative or non- parent.
Mass. Gen. Laws c. 201F; effective April 14, 2009. 50

51. Guardianship of Incapacitated Persons

52. Required Forms to File
Petition for Appointment of Guardian for an Incapacitated Person*
Medical Certificate or Clinical Team Report
Note: Court can waive requirement of Medical Certificate or Clinical Team Report upon filing a statement that it is impossible to obtain, supported by affidavit. Standing Order
Military Affidavit*
Bond*
Fee Waiver (Affidavit of Indigency* and Court Order re: Costs and Fees, with Supplement to Affidavit of Indigency) (if applicable)
For Temporary Guardianship:
Verified Motion for Appointment of Temporary Guardian*
Motion for Alternate Service (if necessary) & Affidavit*
* Requires petitioner's signature 52 52 52 52

53. Conservatorship of Incapacitated Persons

54. Required Forms to File
Petition for Appointment of Guardian of Conservator for Disabled Person or Single Transaction*
Medical Certificate or Clinical Team Report
Note: Court can waive requirement of Medical Certificate or Clinical Team Report upon filing a statement that it is impossible to obtain, supported by affidavit. Standing Order 1-09.
Note: No Medical Certificate or Clinical Team Report is required for Conservatorship of minors. Mass. Gen. Laws c. 190B, §§ 5-401
Military Affidavit*
Bond
Affidavit Disclosing Care or Custody Proceedings*
Required for Conservatorship of minor only
For Temporary Guardianship:
Verified Motion for Appointment of Temporary Conservator*
Motion for Alternate Service (if necessary) & Affidavit*
* Requires petitioner's signature 54 54 54 54

55. Getting a Medical Certificate or Clinical Team Report
Cost must be paid by petitioner or respondent’s estate.
Petitioner could file a motion for the Commonwealth to pay.
Medical Certificate is only valid for 30 days from date of examination.
Clinical Team Report is valid for 180 days prior to the date of filing. 55

56. Medical Certificate
Completed and signed by a physician, licensed psychologist, psychiatric nurse, or nurse practitioner.
Medical Certificate includes:
Description of person’s cognitive and functional limitations;
Evaluation of person’s mental and physical condition;
Prognosis for improvement and treatment recommendations; and
Date of examination.
See Unif. Prob. Ct. Prac. XXII. 56

57. Clinical Team Report Completed and signed by:
a licensed physician,
a licensed psychologist, AND
a licensed social worker
experienced in the evaluation of intellectually disabled persons.
Time starts calculating from the oldest date of examination.
Mass. Gen. Laws c. 190B, §
See “Instructions for completing the Clinical Team Report for Guardianship or Conservatorship.” 57 57 57 57

58. Impoundment Guardianship court files are open to the public.
Clinical Team Reports, Medical Certificates, Physician’s Affidavits and fee waivers are impounded by the Court and kept separately.
A person can file a “Request of Interested Party to Access Impounded Medical Information.”
If a petition for guardianship is denied, the entire file is impounded.
Mass. Gen. Laws c. 190B, § 5-303(b)(12). 58 58

59. Assents
Interested persons can sign the back of the petition to indicate their assent.
Interested persons can also sign a separate assent. 59

60. Finding the Forms and the Law

61. Guardianship Forms Forms available on line:
pfc-upc-forms-generic.html 61

62. Governing Statute Massachusetts Uniform Probate Code.
Effective July 1, 2009.
Mass. Gen. Laws c. 190B.
Statute and interpretive comments can be found at: 62

63. Standing Orders
Standing Orders of the Probate Court, available on line at:
of-court/probate/pfc-orders/ 63

64. Rules Rules and Guidelines: General Rules of the Probate Court
MA Rules of Professional Conduct
Supplemental Rules of the Probate Court
West’s Massachusetts Probate Law and Rules 64

65. Uniform Practices
Uniform Probate Court Practices, available on line at:
res/rules-of-court/probate/pfc-practices/ 65

66. Case Law Be careful of older MA case law that predates MUPC
Look to other UPC States (CT, ME, etc.)
Be careful of MA changes to UPC 66

67. Court Service Centers Current locations:
Boston, Brockton, Greenfield, Lawrence, Springfield, Worcester
Serves as a resource center to self represented litigants in Probate, Housing, BMC/District, Superior and Juvenile Courts
Collaborates with local legal services and community organizations to improve the service self-represented litigants receive, such as LOD and workshops/clinics.
Offers computer access, reference materials, resources, child play space, area for trainings, and a large space for one-on-one work with self represented litigants. 67

68. THANK YOU