Guest Contributor: Joanne Erickson, Esq.
On July 1, 2009, a modernized guardianship law went into effect in Massachusetts expanding the rights and protections for adults with a disability. When a petitioner files a Petition for Guardianship asking the court to appoint a Guardian, the adult who is the subject of the guardianship is known as a Respondent. As a Respondent, the adult has expanded due process rights in answering or responding to the petitioner’s request. If the court determines that the Respondent/adult is incapacitated and guardianship is appropriate, the court may appoint a Guardian. The adult is then referred to as an incapacitated person, with rights and protections that continue for the duration of the guardianship. Joanne Erickson, Esq., offers information on the revised law’s expanded rights and protections for adults with a disability.
1. How does the newly revised guardianship law protect the rights of an incapacitated person?
The goal of the newly revised law is to preserve and protect the individual rights and liberties of an incapacitated person to the maximum extent possible, while ensuring the adult receives essential care and services. The modernized law favors a limited guardianship over a full guardianship, meaning the court will tailor a guardianship to protect the adult’s autonomy and give a guardian decisional powers only necessary to protect the adult from harm.
2. When a petitioner files a guardianship petition asking the court to appoint a guardian, what are the rights of the respondent or proposed incapacitated person?
The new law ensures that the respondent or the proposed incapacitated person has a number of rights in responding to the Petition for Guardianship. The court must consider these rights before making a protective appointment.
Procedural rights include: (1) the right to an attorney, (2) the right to notice throughout the process, (3) the right to a hearing and (4) the right to be present in person at the hearing.
More substantive rights include: (1) the right to oppose the guardianship itself, (2) the right to oppose administering antipsychotic medications or ECT to the respondent, (3) the right to oppose admission to a nursing facility, and (4) the right to oppose extraordinary medical procedures. The respondent has the right to present evidence and to cross-examine any witnesses or expert as in any trial.
3. What if the adult cannot afford an attorney?
If, at any time during the guardianship process, a respondent indicates that he or she wants an attorney, the court will appoint counsel. If the respondent is indigent, the court customarily orders that attorney fees will be paid by the Commonwealth.
4. What are the adult’s rights if the petitioner is asking the court for permission to administer anti-psychotic drugs?
If a petition is filed seeking permission to administer anti-psychotic drugs to an adult, the court will appoint an attorney to represent the respondent (also known as Rogers Counsel) at the time the petition is filed. If the respondent objects to the petition, respondent’s attorney files an objection with the court. The matter must have a hearing before a Judge before any action can be taken.
The respondent may file a Motion for an Independent Medical Examination (often done by a psychiatrist or neuropsychologist), as well as funds to pay for such an examination with the court. The right for an independent evaluation is constitutional in nature and is an important part of a respondent’s case.
5. What are the adult’s rights if the petitioner is asking the court for permission to admit the adult to a nursing home facility?
In order to admit an adult to a nursing facility, the petitioner must seek the court’s specific permission. This requirement under the revised law is an important new protection, where the court determines if admission to a nursing facility is in the adult’s best interest. The respondent may object to a petitioner’s request for permission to admit the respondent to a nursing facility. The respondent, or his attorney, may file an objection with the court, on or before the return date on the citation issued by the court. The matter must have a hearing before a Judge before any action can be taken.
6. What are the adult’s rights if the petitioner is asking the court for permission to commit an adult to a mental health facility or a developmentally disabled facility?
As of July 1, 2009, the Probate and Family court no longer has jurisdiction over requests for permission to commit an adult to a mental health facility or developmentally disabled facility. Any such requests must be filed with the District court. Counsel will be appointed at the time a petition to admit is filed. If the respondent is indigent, the court customarily orders that the attorney fees will be paid by the Commonwealth.
7. If the court determines at a guardianship hearing that the adult is an incapacitated person, what are the adult’s expanded rights and protections under the newly revised law?
If the court determines the adult respondent is an incapacitated person and that guardianship is appropriate, the court may appoint a Guardian. An incapacitated person is an adult who has a clinically diagnosed medical condition that results in an inability to receive and evaluate information or make or communicate decisions. The incapacitated adult lacks the ability to make effective decisions about his or her everyday personal care, health and safety.
The newly revised law increases the rights and protections for the incapacitated person as follows:
- Expands a Guardian’s Role and Responsibilities. A Guardian advocates for the autonomy and fundamental freedoms of an incapacitated adult and provides for essential care and support. The Guardian is also required to consider the adult’s expressed desires and personal values in decision-making and act in the adult’s best interest, encourage the adult to participate in decision-making whenever possible, and help the adult develop or regain the capacity to manage his or her own personal affairs.
- Places Limits a Guardian’s Authority. The Guardian’s decision-making authority and duties are limited to what the court grants in the Decree and Order at the guardianship hearing. If not stated in the Decree and Order, the revised law requires a Guardian to ask the court for specific authority in order to do the following: expand, modify or lessen decision-making powers, admit an adult to a nursing home facility, admit or commit an adult to a mental health facility or developmental disability facility, authorize the use of anti-psychotic drugs or extraordinary medical treatments, revoke a health care proxy, or terminate the Guardianship.
- Monitors the Guardianship. The court monitors the protective appointment and requires the Guardian to submit timely reports to the court stating the current condition of the adult. An initial report is due 60 days after the appointment, and an annual report is due every year on the anniversary date the Guardian was appointed, for as long as the guardianship is in place.
8. Where can I find more information on maximizing the personal rights of adults with disabilities and the limitations to guardianship?
The Massachusetts Probate and Family court has instructional and informational material on its website. For a sample listing of the Limitations to Guardianship, go to:
For more information on the law, go to the Massachusetts Uniform Probate Code, Article I-V:
Joanne Erickson, Esq., focuses her private practice on elder law, disability and probate matters. She assists incapacitated adults and protected persons as Rogers Counsel and as a court appointed attorney or Guardian ad litem. She also represents the families of protected persons and facilities who provide care for incapacitated adults. Her case work includes representation of fiduciaries in probate matters, estate planning including special needs trusts and pooled trusts for disabled persons and their families, and advocacy for elders and their families.
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