The signing of a Health Care Proxy and Durable Power of Attorney is highly recommended in the event that you or a loved one loses the ability to make informed decisions as the result of mental incapacity. However, in those cases where neither document was signed, or in cases where they were signed, but the person(s) designated to make decisions for another is unable, unwilling, or unsuitable to make such decisions, involvement of the Probate and Family Court becomes necessary.

Massachusetts General Laws Chapter 190B, Section 5-101(9), defines an “incapacitated person” as “an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an ability 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.”  The determination of whether someone is incapacitated must be made by a physician. Should your loved one or someone in your care become incapacitated, Petitions for Appointment of a Guardian and/or Conservator can be filed in the Probate and Family Court in the county in which that person resides. 

A Guardian is appointed for the purpose of making personal, day-to-day decisions regarding support, care, education, health, and welfare. Some guardianships are more complicated than others, for example those where the incapacitated person requires treatment with antipsychotic medication, a surgery or other invasive procedure, advanced directives (Do Not Resuscitate, Do Not Intubate, Do Not Hospitalize, Comfort Measures Only, or more), or any other treatment (or lack thereof) that is considered extraordinary.  

A Conservator is appointed for the purpose of making financial decisions regarding one’s money, property, or business affairs. A Conservator may be given full authority over one’s income and assets, or may be appointed for a special purpose. 

In January of 2009, the Massachusetts Legislature enacted the Massachusetts Uniform Probate Code (MUPC) which sets forth very specific procedures that must be followed in order for a Guardian or a Conservator to be appointed. The paperwork and procedures involved can be overwhelming and are often very difficult for people to navigate without the assistance of an attorney who is familiar with the processes. Our attorneys have years of experience representing individuals, hospitals, and nursing homes in successfully petitioning for the appointments of Guardians and Conservators, and we would be more than happy to assist you.