Taxation & Estate Planning

The procedures for obtaining guardianship or conservatorship (see below for definitions) over a person who has become unable to handle their own affairs has recently changed in Massachusetts with the adoption of the Uniform Probate Code.  I will be doing some posts over the next couple of weeks to outline some of those changes.  One of the biggest changes has been the new medical certificate.  You can download of copy of the certificate here: Download MedicalCertificate  The certificate must be filled out by a physician who has examined the proposed incapacitated person in order to demonstrate to the Court the need for the guardianship and to outline what the person can still do on their own.

The changes in the procedure stress the importance of allowing a person under a guardianship or conservatorship to maintain the maximum amount of personal determination as possible.  As you'll see on the certificate, the doctor needs to state what types of things the person can still do on their own - perhaps they can perform activities of daily living and make decisions about their leisure activities but need someone to make medical decisions on their behalf.  Likewise, a person under a conservatorship may be able to handle small amounts of money, but may need a conservator to handle the bulk of their assets and manage their real estate. 

By requiring an extensive medical certificate, the Courts are trying to ensure that people's civil rights remain protected, even when another person is given authority to make decisions on their behalf. 

The reason I stress the importance of planning ahead with Health Care Proxies, Durable Powers of Attorney and Trusts is because with those documents you can avoid the need for a guardianship or conservatorship even if you become incapacitated.  Court proceedings should always be the last resort, as they are public, costly, time consuming, stressful on the family, and put a judge in charge of making the decision about who should handle your affairs. 

Guardianship:  A guardianship is a legal relationship created when a person or institution is assigned by the court to take care of an adult who has been deemed incapacitated by reason of mental illness or mental retardation. A guardian has authority over the person's health care decisions, living situation and related issues. 

Conservatorship: A guardianship is a legal relationship created when a person or institution is assigned by the court to take care of the property and finances of an adult who has been deemed incapacitated by reason of mental illness or mental retardation. A conservator has authority over the person's financial matters.