Who can become a guardian of an incapacitated person?
In Massachusetts, guardians must be appointed by the Probate and Family Court. A temporary guardian may be appointed if there's likelihood of immediate and substantial harm to the health, safety, or welfare of the person. You don't become a guardian automatically just because you're the parent of an incapacitated adult.
The court won't appoint anyone as a guardian who:
- Is currently being investigated
- Has charges pending for committing an assault and battery that caused serious injury to the incapacitated person
- Is currently being investigated for neglect of the incapacitated person
Anyone interested in the incapacitated person's well being can file a Petition for Guardianship.
Who's considered an incapacitated person?
A guardian may be appointed for:
- An incapacitated person — This term refers to someone who doesn't have the legal capacity 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 individual — This term refers to someone who has significantly sub average intellectual functioning, usually defined as an IQ of less than 70, and who has limitations in 2 or more areas of adaptive skills, such as communication, self-care, social skills, health, and safety. Please note: The term "mental retardation" has been removed from all Massachusetts statutes and replaced with "intellectual disability". A guardian may be appointed for a person with an intellectual disability.
- A person with mental illness — Mental illness is defined as a medical condition that disrupts a person's thinking, feeling, mood, ability to relate to others, and daily functioning. Mental illness often causes a diminished capacity for coping with ordinary demands of life. People suffering with a mental illness can experience relief from their symptoms by actively participating in a treatment plan.
A guardian may also be necessary in other circumstances, such as if:
- An elderly parent has a degenerative health condition and can't consent to treatment or placement in a nursing facility
- A person has suffered a traumatic brain injury
- A disabled child is turning 18