Take the Estate!
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Probate & Family Court judges frequently are faced with difficult decisions in cases in which an elderly or incapacitated person may be at risk because of mental or physical incapacities. If that person has no family member or friend who can assist, there is the painful question as to who will stand up for the individual. As such, decisions on elder guardianships are not made lightly by judges. However, judges are not authorized by statute, or otherwise, to appoint counsel in guardianship cases, except in rare instances. And budget restrictions limit a judge's ability to appoint guardians ad litem in all cases. Instead, GALs are appointed only in cases in which problems are identified. Further, only limited funding is available for individuals who are willing to serve in the role of a guardian.
Judges share the common goal that better due process protections need to be built into Massachusetts guardianships, and, in fact, efforts are under way to reform the way guardianships are handled here. One major reform would be the revision of the medical certificate that must accompany a guardianship petition. The new certificate would require details of the elder's actual functionality. The revised medical document places the possibility of a limited guardianship at the forefront of any analysis of whether an individual who is alleged to be incapacitated is in need of guardianship.
Efforts are also under way by the court to provide greater instruction to guardians about their role and responsibilities. Written guidelines would be provided, and an educational video is being considered as well. The court has further been a staunch supporter of Article V of the Massachusetts Probate Code, which provides for significant reform in the guardianship area. While the Uniform Probate Code is being considered by the Legislature, the court is revising its petition for guardianship to require more information about the relationship of the petitioner to the ward, where the ward resided before the petition was filed, and the address where the elder is to reside if the guardianship is granted.
Guardianship reform is long overdue. If anything, lawyers and judges have attempted to deal with the shortcomings of the existing statutory scheme with as many creative solutions as they have been able to devise. Lawyers routinely assist the court by taking on the role of guardian or guardian ad litem for little or no fee. Judges are typically thoughtful and diligent in dealing with guardianship issues. But, undoubtedly, there are changes that should be made to improve the rights of potential wards and to streamline review of the actions of guardians. Only then will the process be fair to all.
Gov. Deval L. Patrick’s top adviser on elder affairs has thrown the administration’s support behind a far-reaching revamp of the system by which guardians are appointed in Probate & Family Court. Elder Affairs Secretary Michael Festa pushed for the overhaul, telling the Judiciary Committee that a pair of bills includes the necessary checks and balances for guardianship appointments that currently are not in place, such as permission for judges to appoint legal counsel for the person at the center of the case.
Probate & Family Court Chief Judge Paula M. Carey said that guardianship reform is “long overdue.” She asked lawmakers, if they pass legislation to give the court six month’s lead-time for the training of lawyers, staff and judges. Several attorneys have raised budget concerns, arguing that the legal counsel provision is potentially an “unfunded mandate.” Some who testified before the Judiciary Committee said they support guardianship reforms but oppose other aspects of the bill, including provisions dealing with a uniform probate code, estate administration and surviving-spouse’s shares.
In the guardianship section, referred to as Article V in the Senate version, the bills remove the standard for “mental illness, “ create a new standard for “incapacitated person, “ require the court to make detailed findings of incapacity before appointing a guardian and then ensure the guardian is qualified. Guardians would also have to submit detailed annual reports on the person’s mental, social and physical conditions.
Information on guardianships: Massachusetts Senior Citizens
A court creates a conservatorship when it concludes a person no longer can care for him/herself or his/her personal and financial affairs.
More information on Britney's case:
Spears' parents go to court for conservatorship hearing
The report includes:
Court records and privacy. [PDF] How do courts make information available, especially online, without disclosing sensitive information such as Social Security numbers?
Problem-Solving Courts. [PDF] Rather than the "lock 'em up and throw away the key" approach, courts increasingly are trying to solve the core issues that land people there in the first place. Drug courts, family courts and environmental courts are all examples.
The report draws comparisons to show how things used to be handled and how they are now.
Poynter also reported on guardianship:
So judges will be increasingly involved in managing these lives. Courts have never managed as many guardianship cases as they do now -- and many more are on the way. How will courts, especially in retirement communities, handle the flood?
NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment.
Our mission is to promote the safety and well being of vulnerable persons subject to injury and damage in their person and property through unlawful and abusive guardianship and/or conservatorship proceedings; to end the growing violations of due process, civil and human rights; to work towards ultimate legislative reform of guardianship as presently practiced; upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment; and to be a support organization for victims and their families. We carry out our mission through research, outreach, education and advocacy; and going forward, by alliance with community interest, law reform, civil rights and other advocacy organizations.
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