Winstead Law


An ongoing discussion of current issues in the law

When it comes to Guardianship, there are better alternatives, but only if you plan ahead

All too often, I am asked about establishing a Guardianship or Conservatorship for an older or incapacitated person who has declined to the point that they are no longer capable of making decisions for themselves.  Massachusetts provides a mechanism for a qualified person to be appointed to see to both the personal affairs (Guardianship) and financial affairs (Conservatorship) of these individuals.  However, with some relatively simple planning, there are things that can be done by the individual and their family to avoid the intrusive, time-consuming and expensive process of having a court appoint a Guardian or Conservator.

Durable Power of Attorney

As a competent adult, you have the right to make your own decisions about your money, property, and business affairs.  You also have the right to appoint a trusted person, called an attorney-in-fact, to make financial decisions on your behalf if you become disabled or incapacitated, and thus avoid the need for a Conservatorship altogether.

Health Care Proxy and Advanced Care Directives

You can also decide for yourself regarding your medical affairs.  With a Health Care Proxy, you appoint a person you trust to oversee your medical needs and make decisions on your behalf should you no longer be able to make those decisions yourself, thus avoiding the need for a Guardian.  We often pair this with an Advanced Care Directive, which allows you to give specific instructions to that person as to your wishes for your future care and treatment.

The benefits of a having all three documents are substantial:

  • Your privacy and dignity are protected, since the fact that you have appointed someone to serve in these capacities, and the very fact that you need that person to assist you, will never become public record;

  • You, and not a judge, decide who will be in charge of your affairs;

  • You decide what powers to give, and not to give, your appointed individual;

  • You will save money, as your appointed person will not need to hire a lawyer and seek court approval prior to exercising their powers, nor will a court order a professional Guardian or Conservator’s fees to be paid from your assets;

  • You can change your mind or void these documents at any time while you are competent to do so.

Make no mistake, the failure to plan ahead can be a costly decision, and can lead to someone making decisions on your behalf whom you would never have selected.  Often, if no qualified family member steps up, Courts appoint local lawyers to serve as Conservators or Guardians, and while they will try to do what they think is best, they are unlikely to know you or your wishes in the way a person you know and trust would.  To top it off, you will be paying the court-appointed individual to perform this service for you.

If you have not already done so, consider consulting with a qualified attorney about ensuring you are protected should you ever be in a position where you might otherwise need a Guardian or Conservator. 

Martin Winstead