As you get older, or if you get disabled in an accident, you may need assistance taking care of yourself. This is nothing to be ashamed of. But just because you need a little help doesn’t mean you need someone to make all your life decisions.
If you become subject to guardianship in Massachusetts, then you will lose most, if not all, of your rights to make decisions for yourself. It is an extreme option that is appropriate for some but should be avoided unless necessary.
The Differences Between Power of Attorney, Conservatorship, and Guardianship
The least invasive option for transferring authority to another person is power of attorney. When you grant someone power of attorney, you give them the right to make financial decisions in your stead. Power of attorney is supplementary. You still retain the ability to make financial decisions for yourself.
Furthermore, you can make someone your healthcare proxy. This is a special type of power of attorney that allows someone to make healthcare decisions, including living arrangements, for you.
These options allow you to maintain as much decision-making power as your disabilities allow. Additionally, power of attorney does not automatically continue if you become fully disabled unless you specifically designate it as durable. This lets you choose someone to assist you without worrying they will gain full control should you become disabled.
Conversely, if you become subject to guardianship or conservatorship, that means a court has determined you are incapable of making decisions about your health or finances, respectively. In this situation, you lose the right to make decisions for yourself.
Courts Assign Guardianships
A guardianship can only be granted by a court and only if a physician who has examined you asserts that you are incapacitated. This assertion is presented as a medical certificate, which can be contested in court and must be confirmed every year.
The court will attempt to maximize your independence. But if it determines you are incapacitated, it will try to choose a guardian or conservator — or both — that will act in your best interests.
Limitations on Guardians and Conservators
Unfortunately, in Massachusetts, there are few limits on guardians. Due to the ruling in the court case Rogers v. Commissioner of the Department of Mental Health, most guardians are granted a Rogers guardianship, which allows them to make extraordinary life and death decisions about the care of someone in their power.
However, there are reasonably strong protections in conservatorships. For example, most conservators have to provide the court with a surety bond before commencing their duties. This is a guarantee that they will use your assets only for your best interests and will not use those assets for their purposes.
If anyone suspects that a conservator is misappropriating bonds, they can file a lawsuit and get compensation from the bond.
Furthermore, a conservator needs approval from the court before they can sell any real estate you own. Typically, the court will require an additional bond before this sale is approved.
Protecting Yourself from a Guardianship
The best way to protect yourself from being subject to guardianship is to consult with an experienced estate attorney before you are disabled. While you are of sound mind, you may choose to create a document granting power of attorney and healthcare proxy to a person or people that you trust.
Whether you are beginning to suffer a mental or physical decline, or you just want to be prepared for the worst, an estate planning attorney at Deland Law Office in Holliston, Massachusetts, can help you protect yourself from ever being forcibly subjected to a guardianship or conservatorship. Contact us to schedule a consultation today.