You may have many questions about guardianship and health care. In this handout, you will learn how guardianship affects health care for adults over age 18 who are incapacitated. You will also learn about the different types of guardians and related roles.
What is a Legal Guardian?
A legal guardian is a person(s) named by the Probate and Family Court who is responsible for another adult’s support, protection and wellbeing when the court finds that an adult is incapacitated (cannot make informed decisions for themselves). This includes decisions around major areas of life, like medical care and housing. The court might also name a legal conservator. This person makes decisions around legal paperwork. Both guardians and conservators help the adult in their care with public benefits and services, general welfare and planning for the future.
Which Paperwork Gives the Details of Guardianship?
The Probate and Family Court provides the legal paperwork. The paperwork is called the Decree and Order. It includes information about the guardian and/or conservator. It also includes the limits of their roles as guardian and/or conservator.
At What Age Does a Child Become His Own Legal Guardian?
Children become their own legal guardians at age 18. This means they are legal adults. This is true even if they are incapacitated. For this reason, it is important for you to get legal guardianship before the person turns 18 if they are incapacitated.
Why Does an Adult Need a Guardian?
Adults need a guardian when the court finds that the person is incapacitated. This means they cannot make informed decisions on their own.
To be incapacitated, adults must:
- Be at least 18 years old
- Have a doctor’s diagnosis of incapacitation
- Be unable to assess or communicate medical information or make decisions for themselves.
Are There Limitations to Guardianship?
Yes. These limitations might let a person make decisions in certain areas, but not others. The court gives a list of the limitations with the Decree and Order paperwork.
There are some situations that need more permission from the Probate and Family Court. These include:
- Major surgery involving general anesthesia
- Being admitted to a residential (live-in) facility
- Being given antipsychotic medications or needing complex medical treatment.
How Does Guardianship Affect Health Care?
Guardianship affects how information is written in medical records. It also affects how medical decisions are made and who the care team can talk to.
- Documentation in medical records
The care team needs a copy of the most recent guardianship paperwork. This paperwork is kept in the medical record.
- Medical decisions
The care team follows the process for medical decision making written in the guardianship paperwork. As the guardian, you must tell the care team if anything changes.
The care team follows the process for communicating written in the guardianship paperwork. As the guardian, you must tell the care team if anything changes.
Types of Legal Guardians
There are many types of legal guardians. Each type has its own set of rules listed in the Letters of Appointment and Decree and Order.
The most common types of guardians are listed below.
- Plenary. A plenary is also called a full or general guardian. A plenary can make all medical care decisions for an adult.
- Limited guardian. A limited guardian can only make decisions that are authorized by the court and listed in the paperwork.
- Temporary guardian. The court can name a temporary guardian in an emergency when there is a strong chance that an adult can make their own decisions in the future. Courts decide on a temporary guardian on a case-by-case basis.
- Co-guardian. Co-guardians share guardianship with another legal guardian.
- Rogers Monitor. A Rogers Monitor is responsible for following the court-approved treatment plan for the use of antipsychotic medication prescribed to the person under guardianship.
- Guardian ad Litem (GAL). A GAL reports to the court on any recommendations related to future guardianship decisions.
- Guardianship of a minor. The court might name a legal guardian for a child under 18 whose parents cannot or will not make medical decisions. This guardian makes decisions about the child’s health, education and safety.
Alternatives to Guardianship
Decisions about a person’s health care, wellbeing, personal items or finances may legally be made by someone other than the person, their parent or legal guardian.
These alternatives to guardianship include:
- Health care proxy. An adult can name someone else (called an agent) to make healthcare decisions when they temporarily cannot do so.
- Durable Power of Attorney (DPOA). A person named as DPOA can make certain legal and financial decisions for the person who names them. A DPOA is just for legal and financial decisions. It cannot be used to make health care decisions.
- Conservator. A conservator manages the finances, property and belongings of a person who needs financial protection. They also make legal decisions. The conservator must be named by the Probate and Family Court. A person can be a conservator and a guardian at the same time. A conservator who is not also a guardian cannot make medical decisions.
Where Can I Learn More About Guardianship?
You can learn more about guardianship at the following resources:
- Your lawyer or legal team
- Massachusetts laws on guardianship and conservatorship
- Probate and Family Court Forms
- Massachusetts Guardianship Association
Rev. 3/2018. This document is intended to provide health related information so that you may be better informed. It is not a substitute for a doctor's medical advice and should not be relied upon for treatment for specific medical conditions.