Guardianship Law

If you have a family member who cannot care for themselves independently, you can petition the court to appoint you as their legal guardian. A guardian is authorized to care for the personal and medical interests of a child or incapacitated adult, most commonly:

• An elderly adult with Alzheimer’s disease or another form of cognitive decline
• A minor child whose parents are unable to care for them
• A parent, sibling, or adult child that the court declares is incapacitated due to illness, injury, or mental health issues
• An adult child with intellectual or developmental disabilities, such as autism and Down syndrome, who is about to turn 18

Massachusetts law provides for two distinct roles for people with the authority to act on another person’s behalf:

• A guardian has custody of the individual and makes decisions concerning everyday care, health care, and safety.
• A conservator manages the individual’s estate, including money, property, and business affairs.

An individual could be under a guardianship only, a conservatorship only, or both. If the circumstances require both guardianship and conservatorship, two petitions must be filed with the court. One person could serve as both guardian and conservator, or there could be two people.

Learn more about conservatorships.

As a legal guardian, you are obligated to act in the best interests of the person in your care (known as the respondent) and consider what they would choose for themselves if they were fit to do so. The court order could grant you authority to oversee some or all of these issues:

• Place of residence
• Medical treatment
• Professional services
• Non-medical services, including education, counseling, in-home care, and the selection of a caretaker
• Release of confidential information
• End-of-life decisions

Courts prefer to limit the scope of a guardianship and allow the respondent to maintain some control if possible. The Massachusetts Court System provides examples of guardianship limitations regarding care of self, medical decision-making, and home and community life.

Many minor children live in the care of a loving grandparent or other temporary caregiver because, sadly, one or both parents are struggling with a substance use problem, mental illness, or incarceration.

If you have a child living in your home but are not the legal guardian, you cannot make any decisions regarding the child’s health care, education, and other important issues. You might wish to file for guardianship or, for more limited powers, obtain a caregiver affidavit.

The courts greatly value the parent/child relationship and will not terminate or limit a biological parent’s custodial rights without clear evidence. Sometimes the parents will consent to a guardianship, but if not, the petitioner or state must prove parental unfitness to the court.

The Commonwealth of Massachusetts’ website has information on how to file for guardianship of an incapacitated person. The process is complex and difficult. The Law Offices of Jessica Doucette and Associates can you walk through the steps of securing guardianship and protecting the best interests of the child.

The Law Offices of Jessica Doucette and Associates provide guardianship services as well as guardian ad litem services.

Yes, it may be a good idea to secure legal guardianship for your child. State law grants anyone turning 18 the decision-making rights of an adult. If you are responsible for your child’s everyday needs and financial welfare, you will want to secure legal guardianship and/or conservatorship to continue protecting his or her interests.

If you anticipate making long-term decisions on behalf of your grandchildren while their parents are incapacitated, you might wish to consider one of two options: a Caregiver Authorization Affidavit or a legal guardianship.

A Caregiver Authorization Affidavit allows the child’s parent to grant a trusted non-parent, such as a grandmother, the authority to make health and education decisions on behalf of the child. The parent retains custody of a child under this arrangement. 

A guardianship is more legally complex, expensive, and difficult to obtain. Your attorney can advise you of your options.