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.
Source: Mass Lawyers Weekly: Guardianship reform is overdue
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.
Source: Mass Lawyers Weekly: Push on for reform of guardianship
Information on guardianships: Massachusetts Senior Citizens
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