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Guardianship, Mass. Trial Court
The information in this section helps you understand the legal process of guardianship, the types of guardianship available, the role and responsibilities of a guardian, and the required forms when you file for guardianship, including the annual report of guardian of a minor and and annual report of guardian of an adult (scroll down to Guardian’s Care Plan/Report).
Massachusetts laws
MGL c.190B, Article V Guardianship and conservatorship of children and incapacitated adults
Provides procedures to allow guardians to be appointed while also protecting individuals' civil rights and autonomy.
- See also: MGL c.190B, § 5-209 Powers, duties, rights and immunities of guardian of minor; limitations of guardianship
- See also: MGL c.190B, § 5-212 Resignation, removal, and other post-appointment proceedings
In a petition to remove a guardian of a minor child, the guardian shall have a right to counsel if the guardian has been the primary caretaker for the child for at least 2 years or for an otherwise significant period of time during the child’s life.
MGL c.190B, Article 5A Uniform adult guardianship and protective proceedings jurisdiction
Provides a procedure for situations in which a caregiver lives in another state, or when the person involved lives in more than 1 state.
MGL c.201F Caregivers
A simpler process that may allow a caregiver to make decisions about education and health care for a child. Includes caregiver rights and responsibilities and spells out the content of the caregiver affidavit as well as providing an outline of the caregiver affidavit form. See web sources below for the link to the fillable caregiver affidavit form.
Selected cases
Guardianship of K.N., 476 Mass. 762 (2017)
A probate and family court judge could use sound discretion to appoint counsel for an indigent guardian in a removal contest under the Massachusetts Uniform Probate Code, G.L.c. 190B, §5-212.
Guardianship of Kelvin, 94 Mass. App. Ct. 448 (2018)
Explains the burden of proof in a petition to remove a guardian. The "mother had the initial burden... of producing some credible evidence of changed circumstances since the initial guardianship determination... Once the mother satisfied this burden of production, the guardian then bore the ultimate burden of proving, by clear and convincing evidence, that the mother remained unfit and that continuation of the guardianship served Kelvin's best interest."
Guardianship of V.V., 470 Mass. 590 (2015)
A "parent whose minor child is the subject of a guardianship proceeding pursuant to G. L. c. 190B, § 5-206, and who cannot afford counsel has a right to have counsel appointed and to be so informed."
L.B. v. Chief Justice of the Probate and Family Court Dept., 474 Mass. 231 (2016)
"When an indigent parent who is not represented by counsel seeks... to remove a guardian who has been appointed for a minor child,...the parent has a due process right to counsel to prosecute such a petition, and to be informed of this right, provided the parent presents a meritorious claim for removal...similarly, ... an indigent parent who petitions to modify the terms of a guardianship by seeking a substantial change in the provisions for visitation is entitled as a matter of due process to counsel, and to be informed of this right, provided the parent presents a meritorious claim."
Web sources
Adult guardianship & conservatorship, Rogers orders, and their alternatives, Massachusetts Association for Mental Health (MAMH).
Provides an overview as well as a list resources available and a link to how the probate court process works.
Alternatives to conservatorship, Mental Health Legal Advisors Committee, November, 2015.
Provides an overview of alternatives to conservatorship. For example, representative payee, powers of attorney and trusts.
Alternatives to guardianship, Disability Law Center’s Self-Advocacy Materials, 2018.
This document is designed for people with disabilities. The information is about your legal rights and how to advocate for yourself as a resident in Massachusetts.
Caregivers or guardianship: Choosing the best option for a child, Mass. Legal Help.
When parents cannot take care of their child, they need someone else to. Another person, often a family member, can help. This person can be a caregiver or a guardian. Explains the different care types and what they mean in terms of the process, requirements, and the types of decisions that can be made on behalf of the child.
Custody guide for child caregivers, Mass. Court Improvement Program.
This guide is designed for anyone who is, or may become, a caregiver for a child in Massachusetts.
Guardianship of a minor child, Family Law Advocacy for Low and Moderate Income Litigants, Massachusetts Legal Services, 3rd Edition 2018, Chapter 13.
Provides an overview of guardianship, information for the petitioner (person seeking guardianship), information for the parent, including what to do if someone wants the court to appoint a guardian for your child, knowing your rights and how to prepare for court. Also includes checklists and forms.
Guardians & other caregivers, Mass. Legal Help.
Provides a collection of articles on the subject of caregiving and guardianship of minors.
Guardianship of an incapacitated person in Massachusetts: questions and answers, Volunteer Lawyers Project, Boston, May, 2021.
A 2-page brochure that provides a quick overview of the most commonly asked questions and answers about guardianship of an adult.
Learn about the difference between guardians and caregivers, Mass. Probate and Family Court.
You may be able to become a legal caregiver instead of a guardian. This is a much simpler process than guardianship, and no forms need to be filed in court. Find out what the difference between guardians and caregivers is and what kinds of decisions they can make for minors. Includes a link to the caregiver authorization affidavit and instructions on how to fill it out.
Limitations to guardianship for attorneys and judges and Limitations to guardianship for clinicians Mass. Probate and Family Court.
Provides examples of types of limitations that can be applied to guardianship under the Mass. Uniform Probate Code.
Public Guardian Services, LLC.
This is a pilot project in collaboration with the Massachusetts family and probate court, providing guardianship and conservatorship services to residents in Suffolk, Norfolk and Plymouth counties who are decisionally impaired and who have no other suitable person available to assist them.
The right to a court-appointed lawyer in a guardianship case, Mass. Legal Help, 2023.
"If you are involved in a guardianship of a minor case, you may have the right to a lawyer. If your income is so low you cannot afford a lawyer, you may have the right to a court-appointed lawyer."
Print sources
Elder law (Mass. practice v.56), Thomson West, annual.
Family law and practice (Mass. Practice v. 3), Thomson Reuters, 2019, with supplements.
Chapter 86: Guardianship or conservatorship of minor child or incompetent family member.
Fundamentals of guardianship: what every guardian should know, ABA, Senior Lawyers Division, 2017.
Not Massachusetts-specific but provides an overview of guardianship and its alternatives – The guardianship process -- Rights of individuals under guardianship -- Roles of the guardian -- Fiduciary principles -- Guardian of the person -- Abuse and neglect -- Guardian of the estate – Guardianship modification.
Guardianship and conservatorship in Massachusetts, LexisNexis, 2012 with supplements.
Guardianship and conservatorship practice in Massachusetts, 6th ed., MCLE, 2021, with supplements, loose-leaf.
Massachusetts elder law, 2d ed., Lexis, 2008 with supplements.
Chapter on Guardianships and Conservatorships.
Pro bono manual guardianship, Community Legal Aid, 2016.
Anatomy of a case: a step-by-step guide -- Alternatives to guardianship in Massachusetts -- Overview of the guardianship process -- Court forms when filing a petition for guardianship -- Going to court -- Post-guardianship -- Case studies.
Probate law and practice, Thomson Reuters, 2019 with Supplements. Chapter 45: Guardianship, Chapter 46: Temporary guardianship, Chapter 48: Conservatorship.
Summary of basic law (Mass. practice v. 14-14D), Thomson Reuters, 2014, with supplements.
Chapter 8: Domestic relations, Part VI: Parent child relations, Section F: Guardianships.
Contact for Massachusetts law about guardians and caregivers
Online
| Last updated: | March 7, 2024 |
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