Who can become a guardian of an incapacitated person?
In Massachusetts, guardians have to be appointed by the Probate and Family Court. You don't become a guardian automatically just because you're the parent of an incapacitated adult. A temporary guardian may be appointed if it’s likely that there will be immediate, considerable harm to the health, safety, or well being of the person.
The court won't appoint you as a guardian if:
- You’re currently being investigated.
- You have pending charges for committing an assault and battery that seriously injured the incapacitated person.
- You’re currently being investigated for neglecting the incapacitated person.
A guardianship is not the same as a conservatorship. Guardianships and conservatorships are filed through separate processes.
Who's considered an incapacitated person?
A guardian may be appointed for:
- An incapacitated person — An incapacitated person is someone who doesn't have the ability to make their own decisions. An incapacitated person is defined as someone who "for reasons other than advanced age or minority has a clinically diagnosed condition that results in an inability to receive and evaluate information or to make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."
- An intellectually disabled person — An intellectually disabled person is someone who has intellectual functioning that's significantly below average, usually defined as an IQ of less than 70. They also have limitations in 2 or more adaptive skills, such as communication, self-care, social skills, health, and safety.
- A person with mental illness — Mental illness is a medical condition that disrupts a person's thoughts, feelings, mood, ability to relate to others, and daily functions. Mental illness often makes it more difficult to cope with ordinary day to day tasks. People suffering from a mental illness can get help with their symptoms by participating in a treatment plan.
- Special circumstances — A guardian may also be necessary in these other circumstances, such as:
- If an elderly parent has a degenerative health condition and can't consent to treatment or being placed in a nursing facility
- If a person has had a traumatic brain injury
- If a child with a disability is turning 18