Thursday, March 12, 2009

Guardianship Changes (& how to avoid this proceeding!)

What is a Guardianship action?

A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself. Sometimes the Guardianship encompasses both the right to make decisions on behalf of the incapacitated person and also to manage their financial affairs. This would be called Guardianship of the person and estate in Massachusetts.

Some Guardianships allow for extraordinary powers, such as the power to administer drugs, assent to medical procedures, or to commit a person involuntarily.

Guardians are held to the highest fiduciary standard, which means, in legal terms, that they must always act in the best interest of the ward. However, the probate court has lacked the mechanisms to control and prevent abuses of the Guardianship system until recently. This lack of control and lack of monitoring of Guardianships has led to some well-publicized and serious abuses of the system, wherein persons were stripped of their civil liberties and right to self-determination, or wherein their estates were looted by those Guardians to whom their money was entrusted.

The Massachusetts Uniform Probate Code was signed into law on January 15th, 2009, and the new Guardianship provisions become effective July 1, 2009.

The new changes are profound and will impact positively persons currently under Guardianship or possibly subject to future proceedings. Some of the more notable changes are;

* Limited Guardianships will be encouraged, so as to allow the incapacitated person as much personal freedom and self-determination as possible

* Guardianship control of the estate (a person's financial affairs) will be a separate and distinct proceeding

* Guardians seeking to admit an incapacitated person to a nursing home will now be required to obtain written findings by the court that such admission is in person's best interest

* Guardians will now be required to file annual reports on the capacity of person under Guardianship, whereas they previously only had to account for their management of money if they were Guardians of the estate.

* The probate court will now now mandate monitoring throughout the period of Guardianship

The net effect of these changes is a sweeping change that positively protects the rights and interest of individuals, and will very likely cut down the abuses that have existed in the previous system.

In sum, the MUPC offers many long-awaited positive changes to a flawed system. However, the more important point I need to make in summary is that most Guardianships can be avoided with pre-planning by means of a Durable Power of Attorney.

A Durable Power of Attorney is a seriously powerful tool, and yet it is often overlooked or misunderstood by people.

•A power of attorney is a document that allows you to appoint an individual to act as your agent (called an attorney-in-fact) should you ever become incapacitated, even if temporarily. You decide what powers your agent will have. For example: power to pay your bills, buy/sell property, make investments, run your business, etc.

•Benefits: allows you to avoid becoming the subject of a public, costly, and often embarrassing Guardianship proceeding, and allows your agent to act without delay.

•Drawbacks: The document is effective on signing; If you are uncomfortable with giving such power over to your agent immediately, you can give it in escrow to your attorney, to hold until such time as your physician deems you incapacitated. Obviously, give your physician a copy of the document.

I applaud the legislature for improving Guardianship law and practice. However, pre-planning so as to avoid such proceedings by having a Durable Power of Attorney in place in the event of your incapacity can avoid the cost, delay, and red-tape involved in a Guardianship proceeding.

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