Massachusetts probate courts are seeing a steady increase of individuals petitioning for and being appointed as a guardian, conservator, or both, for elderly, disabled and minor individuals. Petitioning the court is the simple part; unfortunately, the requirements accompanying the appointment are not. As a result, many people are finding themselves in violation of their duties as guardian and conservator, which could result in legal and financial implications. If you are serving as a guardian or conservator of a loved one, it is critical that you are aware of the following duties and limitations.
Guardians
The powers of a guardian are limited to the scope of the appointment. In other words, you can only do what the court permits. In most cases, standard guardianship powers include making medical decisions on behalf of the incapacitated or minor person and communicating with doctors, medical providers, schools and other institutions concerning the care, health and safety of the individual. If you are looking for more specific powers, such as the authority to administer anti-psychotic drugs, sign a DNR or admit an incapacitated person to a skilled nursing center, you must petition the court for this additional power – it is not automatically granted. Another thing to keep in mind is that no guardian will be granted control over the protected person’s finances. This requires a separate appointment as a conservator.
Once you are appointed and are familiar with your guardianship powers, you should become familiar with the administrative requirements. All guardians are required to file an annual care plan with the court, detailing their proposed course of care for the incapacitated person or minor. This must be updated each year and should also include any changes to the mental state of the individual. Additionally, depending on the powers granted to the guardian, other annual reports, such as a Rogers Report, must also be filed. These annual reports are an essential component of the guardianship appointment and if overlooked, may lead to additional court involvement down the line.
Conservators
As with guardians, the powers of a conservator are also limited to the scope of the appointment. In most cases, standard conservator powers permit you to make financial decisions on behalf of the elderly, disabled or minor person. These powers may include buying and selling assets, making investments, collecting or satisfying debts, and representing the individual in legal proceedings where they have a financial stake. Additionally, as conservator, you are permitted to communicate with banks, investors, insurance companies, businesses and other financial institutions. More specific powers, such as the authority to sell or mortgage real estate, establish a trust or estate plan, or make financial gifts to others, require additional court authority. The role of a conservator is mainly financial in nature, and in no event will a conservator have the power to manage the health and safety of the incapacitated or minor individual unless a separate power as guardian is also granted.
Once you are appointed as a conservator, you are required to file an inventory with the court detailing the value and location of all assets of the elderly, disabled or minor person. Additionally, you must also file an annual accounting, showing all of the income and expenses that have occurred over the course of the year. If you are investing assets, you are required to uphold a duty of loyalty to the incapacitated or minor person and make all financial decisions in their best interests. Finally, depending on the powers granted to the conservator, the court may also require the filing of an annual financial plan, outlining any proposed investments and anticipated expenses over the next year. Failure to file these annual accountings properly and timely may result in financial and legal implications.