Guardianship? - Law Office of Timothy Ciaffoni

SERVING PLYMOUTH, BARNSTABLE, AND

BRISTOL COUNTIES IN MASSACHUSETTS

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WHAT IS A GUARDIANSHIP?

A guardianship gives a caretaker of a child or an adult, the legal right over a Ward, and to manager of the care services, make decisions for another person who may be unable to care for themselves. E.g. elderly individuals, children or disabled persons.

Note: there is a legally significant difference between a guardian and a conservator, and this has to do with the types of authority or decision-making power the state has designated specifically for them.  Guardians’ authority would be for example medical treatment decisions. Conversly, conservators’ authority involves things like the management of a person's financial estate (usually used for elders).

 

Guardianship is Not Custody. Guardianship is not a form of custody. Custody refers to children specifically—and a Guardian does not receive any parental rights and is simply appointed to care for the abode and health of the protected person. Also while there exists a guardianship of a child, the parents of the child will maintain their parental rights.

Guardianships can be granted in the following situations:

  • Grandparents and Elderly may have adult-aged children to be their legal guardians—which is resolved through court hearings or administratively.

  • A child's parents consent to guardianship or the parents' rights are terminated, and then courts appoint a guardian.

A military parent would do well to name guardians for their children, in the event they will be posted overseas. A Parent may also need to designate a guardian in their Will or Trust, and the court can know this preference for a guardian, granted that the designated person is available still at that time.

 

What if the Person has already become Seriously Ill?  Suppose that an elderly person has Sudden Illness, which leads them incapacitation. They requires ongoing care, and possibly their mental state has become potentially harmful to others. The guardianship of an adult, incapacitated may still be provided through the court an appointed guardian.

 

How to Get a Guardianship? By a court order, so to obtain guardianship over a child or adult

  • File a petition in the  probate court of the county where the prospective ward resides (even if the parent of a child has already consented to grant guardianship).

  • Numerous forms must be provided to the court clerk's office.

  • After the ward is served, and the court schedules a hearing to determine if guardianship is necessary or appropriate.

  • Proof must be offered, in the form of a doctor's examination, for guardianship of an adult. Conversely, proof that the child needs of supervision or care, to establish the guardianship of a child.

 

Preventing the Hassle of Appointing a Guardianship? By creating an estate plan—which can consist of many legal documents—that prepares for all eventualities.

  • Obtain a health care advance directive and/or a health proxy so that you can name someone to make health decisions for you.

  • Establish what you wish to be your end-of-life health care.

  • Create a living trust to ensure your finances are protected and managed.

  • A power of attorney names someone to handle business and financial dealings on your behalf in the event that you become incapacitated.

Click here to schedule a consultation with Attorney Ciaffoni if you feel that you need, for yourself or some important in your life, a Guardianship, Healthcare Proxy, or Healthcare Advance Directive, or Estate Planning, so that these issues can be handled the right way.

Guardianship can be an important lifeline for children or adults in need. Ensuring that you will be prepared—for yourself and your loved ones—could make your life a great deal less stressful.