Massachusetts Legislature Poised to Give Immunity to “Guardians”

There is currently an act before the Massachusetts Legislature to establish the Office of Adult Guardianship and Decisional Support Services. (S.1177/H3027). The purpose of the bill is to provide guardianship services to “unbefriended” people who are unable to manage their affairs.

These people are the most vulnerable in society. They have no one to complain if they are subjected to abuse by a guardian. They are the perfect victims. Any system for providing guardianship services to the “unbefriended” has to have iron clad protections against abuse.

On the contrary, this bill gives immunity to guardians. Guardians are already given immunity by judges of the Probate Court. Regardless of the intent of this immunity the result has been to create a system of legalized crime where guardians commit crimes with impunity. Other health care providers (doctors, nursing homes, etc. ) have to carry liability insurance. Conservators have to be bonded. Guardians should have liability insurance, not immunity.

Democracy was invented to prevent abuse of authority by government. The best way to stop abuse of guardianship is to use principles of democracy such as separation of powers (no one has sole control), checks and balances, accountability (no immunity), avoiding conflict of interest by putting authority in the hands of disinterested parties, etc.

The current bill has none of these protections of democracy. The Governor’s Advisory Council has no authority.  A careful reading of the bill shows that the Executive Director of the Office of the Adult Guardianship and Decisional Support Services is the only entity given any authority. The Office of Adult Guardianship has no authority as an entity. All its duties and powers are executed by the Executive Director.

I have attempted to rewrite the bill in a way that makes maximum use of the principles of democracy to prevent abuse of power.

All comments, corrections, suggestions, etc.  are welcome.

—————————

Thank you,

David Arnold

~~~~~~~~~~~~~~~~~~

Read these bills here:

https://malegislature.gov/Bills/190/H3027

https://malegislature.gov/Bills/190/S1177

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 REVISED BILL WITH IMPORTANT CHANGES HERE:

“An Act to establish the office of adult guardianship and decisional support services.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Sections highlighted in red are to be inserted.

1 SECTION 1. The General Laws are hereby amended by inserting after Chapter 19D the
2 following chapter:.
3 CHAPTER 19E
4 OFFICE OF ADULT GUARDIANSHIP AND DECISIONAL SUPPORT SERVICES
5 Section 1. Definitions
6 As used in this chapter, the following words shall, unless the context clearly requires
7 otherwise, have the following meanings:.
8 “Act,” the Adult Guardianship and Decisional Support Act.
9 “At Large Member,” a person with personal or professional experience with
10 guardianship, conservatorship or voluntary decisional support for elderly,
11 intellectually/developmentally disabled persons, and/or mentally ill persons. “At Large Members” shall be disinterested parties from all walks of life who do not derive income or other benefits from guardianship or conservatorship.
12 “Chief Justice,” the individual who is the Chief Justice of the Probate and Family Court
13 Department of the Trial Court of the Commonwealth of Massachusetts.
14 “Council,” the Governor’s Advisory Council for Adult Guardianship and Decisional
15 Support, as established and empowered herein.
16 “Decisional Support Services,” a range of informal and formal services to meet the needs
17 of persons with diminished decisional capacity.
18 “Executive Director,” the executive director of The Office of Adult Guardianship and Decisional

19 Support Services, as appointed and empowered herein. The “Executive Director” shall be a disinterested party who does not derive income or other benefits from guardianship or conservatorship.
22 “Incapacitated person,” someone as defined in MGL Ch. 190B, Section 5-101 (9).
23 “Office,” the Office of Adult Guardianship and Decisional Support Services, as
24 established and authorized herein.
25 “Public Guardian,” the entity designated as such under applicable provisions of the Act.
26 “Volunteer,” a person recruited, trained and supervised by the Public Guardian to assist
27 the Public Guardian in carrying out the duties of a guardian, conservator or other decisional
28 support person on behalf of the Public Guardian.
30 Section 2. Office of Adult Guardianship and Decisional Support Services created; duties.
31 (a) The Governor shall create an Office of Adult Guardianship and Decisional
32 Support Services and shall appoint
33 the executive director.
The appointment shall be confirmed by a 2/3 vote of the Council. The executive director shall be knowledgeable of (1) the clinical causes and (Click to Continue)

Full Article & Source:
Massachusetts Legislature Poised to Give Immunity to “Guardians”