Taxation & Estate Planning

Having to consider a guardianship over an aging parent is difficult, although sometimes necessary.  In most cases, if someone has a comprehensive durable power of attorney drafted and a health care proxy in place, that should do away with the need to pursue a guardianship. However, if the appriopriate documents have not been drafted, or if they are insuffucient to meet the needs of the elder, a guardianship may have to be sought. 

A guardianship is a legal relationship whereby the Probate and Family Court give the guardian the power to make personal and financial decisions for the ward (the person who is no longer competent.)  A guardian can be appointed when someone is incompetent due to mental illness (including dementia or Alzheimer's disease), mental retardation, or physical incapacity.

Below are some of the steps that must be taken. 

First, you should have your parent or loved one  evaluated by a physician to determine if, in fact, they are unable to care for themselves.  In some cases, such as when someone has had a stroke and is completely incapacitated, this may be clear, whereas in other cases, such as someone with memory loss, it may be less clear whether the person is still able to handle their own affairs. 

If the physician determines that the proposed ward is unable to care for themselves, you would then need to file a petition in the Probate Court requesting that a guardian be appointed. Two petitioners must sign the petition, and the proposed guardian must file a bond with the Probate Court.  The Court will require that the proposed ward and their heirs receive notice of the petition.   The Court sets a date by which anyone, including the proposed ward, may object to the guardianship. Then, a hearing is held and the judge decides whether a guardian should be appointed. 

A temporary guardian can be appointed for 90 days, or a permanent guardianship can be establish. A guardianship lasts until the ward can establish that he or she is competent,  the ward passes away, or the guardian resigns or passes away or is removed by the Probate Court.