Section Review

Limited guardianships

Limited guardianships are perhaps the least understood and least used form of guardianship. When most people, lawyers and laymen alike, think of guardianship, they envision a person appointed to take care of an individual’s person and/or their estate. Once appointed, the guardian of the person is given the power to control almost all decisions an individual can and must make in daily life. Similarly, a guardian of the estate is given full control over the individual’s finances and daily spending. Because a guardianship is the imposition of an involuntary court-appointed decision-maker, there should be a nexus between the capacity of the ward and those rights which are transferred to the guardian as a result of a court decree with the ultimate policy of maximizing the feasible personal liberties of the ward. This is a limited guardianship.

In order to protect an individual’s autonomy, there are several avenues which should be explored prior to the issuance of even a limited guardianship. There are many circumstances where the individual’s critical needs can be met or substantial harm to a person’s person or property avoided through a variety of protective arrangements and supplemental support service without the need for court intervention. These alternative best preserve an individual’s rights. Prior to seeking court assistance, consideration should be given to utilizing health care proxies, durable powers of attorney representative payees, trust accounts and state and local community services for elders and persons with disabilities including social, rehabilitative, protective, homecare, personal, food and transportation services, as well as health insurance and legal advisors (various information clearing houses such as www.MassHomeCare.org,
www.800AgeInfo.com and the Office of Elder Affairs or Client Assistance Program — both found at www.mass.gov — are helpful starting points).

Where such alternatives do not adequately assist or protect the individual, a guardianship may be necessary. At this stage, it must be borne in mind that a person who is placed under guardianship of their person and estate (sometimes referred to as a “plenary guardianship”) is stripped of a multitude of rights. This includes the right to make a multitude of daily life choices such as decisions relating to shelter/residence, ownership or management of real estate, the continuation and operation of a business, voting stock, making educational elections, legal issues such as entering into a contract or filing, pursuing or compromising a legal claim, determining inheritance issues, retaining counsel, dealing with finances, the right to travel, and decisions regarding medical care and/or treatment options including end of life decisions. Because of the potential to impinge upon these individual’s liberties, a guardianship should not be one size fits all. Simply because a person is incapacitated in one area of his or her life should not mean that he or she is likewise incapacitated in all others. Not only is there a loss of liberty involved in appointing a guardian, but there is a stigma associated with a judicial finding of incompetence, particularly when the term “mentally ill” is applied. A guardianship may be sought for one who is determined to be mentally ill, mentally retarded or physically incapacitated. Although most would agree these are overly-broad categories which should be tailored even further, they do at a minimum recognize that there are different types of disabilities. This recognition must be expanded, not only to allow for other, less stigmatizing categories, but to appreciate that various disabilities differently affect an individual’s ability to meaningfully participate in certain human rights decisions.

The limited guardianship is an alternative avenue of providing protection to those who need some assistance but are capable of managing certain areas of their lives. It recognizes and appreciates that individuals with disabilities have different abilities in different areas of life. By restricting the powers given to a guardian, the limited guardianship promotes self-determination and autonomy by tailoring the guardianship to allow the retention of rights and decision-making authorities not reposed in the guardian.

Unlike other state statutes, in Massachusetts, our statutes authorizing the appointment of a permanent guardian, namely Mass. Gen. Laws c. 201, §6. 6A, 6B, do not explicitly require, prefer or even expressly authorize the use of limited guardianship. See appendix for a review of other state statutes. Nevertheless, in the seminal case of Guardianship of Bassett, 7 Mass.App.Ct. S6 (1979), the judge having found the proposed ward competent to handle “some but not all of his personal and financial affairs,” ordered a “guardianship plan” be filed which included “a statement of the particular needs, disabilities, and development potential of the ward.” Id. at 60-61. This case made clear that a probate court judge may exercise “powers to appoint a guardian for limited purposes and with specified responsibilities,” Id. at 67, for someone who is found to be “partially incompetent.” Id. at 64. n.9.

Contrast to our permanent guardianship statutes our statute authorizing the appointment of a temporary guardian. Mass. Gen. Law c.20l, §14(a) as amended in 1977, requires a temporary guardianship order or decree to “indicate the nature of the emergency requiring such appointment and the particular harm sought to be avoided, and shall state that the temporary guardian so appointed is only authorized to take such actions with regard to the ward as are reasonably necessary to avoid the occurrence of that harm.” (emphasis added). The protection afforded by this provision is the requirement that the court take the least restrictive approach to achieve its goal of protecting the welfare of an individual. Failure to do so may result in the temporary decree being vacated. New England Merchants National Bank v. Spillane, 14 Mass.App.Ct. 685, 690 (1982). Despite the case law and the express directive of our temporary guardianship statute, there is still a failure from the bench and bar to issue tailored or limited guardianship decrees. The simple fact is that plenary temporary and permanent guardianships are ordered routinely despite the fact that the ward retains the capacity to exercise certain basic rights. There are a variety of reasons for this.

There are several presumptions and misconceptions which support the preference for plenary guardianships over limited ones, even where a limited guardianship is arguably more appropriate. A perceived impediment to the full utilization of limited guardianships is the concern that by limiting the powers of the guardian, there is an increased need for court intervention by a guardian who is required to access the court in order to expand his or her authority as the ward’s abilities diminish. In cases where a rapid decline in faculties is anticipated, a limited guardianship may only create a financial and emotional burden on the ward and be an inefficient use of judicial resources. However, this is not true for the many incapacitating conditions and disabilities which are fairly stable or progress slowly. Those individuals under guardianship for the basis of mental retardation may be under a guardianship for the majority of their life with little to no change in their cognitive functioning. Likewise, certain diseases may progress quite slowly over years without further decline. For those severe, chronic disabilities resulting in substantial limitations in self-care, receptive and expressive language, mobility, self-direction or those with a continuous need for individually planned and coordinated services, limited guardianships are not appropriate. For all others it should be a primary consideration.

Another common concern is that a limited guardianship will spawn unnecessary litigation over the exact scope of a guardian’s authority, thereby requiring the guardian to return to court to clarify his powers.1 This may be particularly true in regards to guardianship over the person’s estate. In this day and age of businesses fearful of liability, a guardian acting in an appropriate, authorized capacity may be stymied in their efforts to fulfill their duties due to a lack of understanding of the guardian’s authority. A valid concern is that the person under guardianship will incur emotional stress from additional court proceedings as well as unnecessary costs and fees associated with the resolution of such misunderstandings. The latter concern is magnified where the guardian is not a family member, but rather, a professional entitled to charge for his or her time.

The answer to this perceived barrier is to craft clear and unambiguous decrees which leave little room for doubt as to the authority of the guardian and the rights retained by the ward. The guardian, ward and all third parties who must rely upon the order should be able to understand and interpret the decree without question. The bench and bar must work together to mitigate the problem by producing guardianship decrees which clearly delineate the limitations on the authority of the guardian or, in the alternative, the decree could specify the areas of decision making retained by the ward. Depending on how a limited guardianship decree is tailored, it could be argued that the powers withheld from a guardian in a limited decree are not automatically reposed in the ward. Therefore, the decree must be conspicuous. For instance, it would be fairly innocuous to expressly reserve in a guardianship decree the ward’s right to vote. The retention of this right made explicit in the guardianship decree would serve to rebut the presumption created by our laws that one under guardianship has lost such rights without impeding the guardian’s duties in the least. See M.G.L. c.51, §51 (voter eligibility requires the voter is “not a person under guardianship”); Guardianship of Hurley, 394 Mass. 554 (1985) (discussing the limited nature of the ward’s guardianship such that he had the ability to, and therefore was entitled to register to vote).

The Probate Court judge’s ability to enter tailored, limited decrees is directly dependent upon the information they are provided by the practitioners. Likewise, the practitioner’s presentation of information will necessarily depend upon the results of the medical evaluation of the individual. Therefore, it is incumbent upon the clinicians providing the medical certificate or the clinical team report to provide an accurate and specific diagnosis. This is essential. The clinician’s statements not only provide the court with an understanding of the cause of the individual’s problems, but they clarify whether such condition is temporary or permanent, the length of time the condition has existed, and most importantly, and whether the condition can be treated or the effects mitigated with treatment, such as medication, or whether the condition is expected to worsen over time.

In addition to this information, the judge must be provided with information on the individual’s cognitive abilities in such areas as attention, memory, comprehension, reasoning and planning. There should be a specific focus on the person’s ability to receive and evaluate information and make decisions based thereon. Ultimately, the judge needs to be provided with thorough information on the individual’s cognitive and functional strengths and weaknesses which affect their ability to remain in their current situation or environment. Conclusory statements should be avoided, and rather, the evidence supporting the basis for the conclusion or recommendations should be provided to the judge with illustrations. For example, stating that the ward has “limited understanding of finances” does not tell the judge much about the ward’s abilities. Instead, it would be more helpful to the court to say, “The ward understands the concepts of money and purchasing but not investing or saving. She can go grocery shopping by herself but is easily susceptible of being taken advantage. She would give money to anyone who told her they could make her a lot of money if she just gave them a few thousand dollars.” Where it is often difficult to obtain even a clinician’s general and conclusory statements, the need for a statement which clearly differentiates between those things an individual can and cannot do, clearly described for the court, will be an obstacle towards obtaining limited guardianships. To avoid this dilemma, the practitioner or the court system will need to provide the clinician with a checklist or a fill-in-the-blank form to facilitate such statements. Nevertheless, the burden of obtaining such clear clinician statements should not outweigh the individual’s right to retain the right to make decisions of which they are clearly capable.

In addition to the judges being provided with comprehensive evaluations regarding an individual’s abilities, and until a limited guardianship decree is promulgated, it would help the judge to be provided with a proposed limited guardianship decree. While Practice XXXIII, Standards for Computer Generated Forms permits the court to reject any form which fails to comply with the standards of the practice rule, it is likely that the court will accept an alteration of the official court form provided such alterations are made clear on the face of the decree by use of underlining, italicization and/or bolding of the font. The judge must be aware that what is being offered as a standardized form has actually been altered and the judge must expressly accept such alterations.

Finally, serious consideration must be given to implementing periodic review of all guardianships as occurs in other states, such as Connecticut and Pennsylvania. “The goal of effective guardianship is to be able to restore the rights of the individual who, for whatever reason, has had some of them removed by a court after due process. It is true that in many instances, once a guardianship has been initiated by a court, it is in place until the incapacitated person dies. However, an annual review and assessment will monitor the need for maintaining or terminating a guardianship and alert the court to a potential restoration of some or all of the incapacitated person’s rights.” National Guardianship Association. www.guardianship.org/pdf/guardianshipConservatorship.pdf (October, 2007).

Conclusion

The traditional judicial concern of protecting the welfare of a ward must be balanced with the ward’s right to make decisions for themselves and the role of the courts in that decision-making process. A limited guardianship recognizes that a person retains the capacity to make some basic life decisions but not others. The benign purpose of our guardianship statutes can be effectively accomplished without trenching on the individual’s liberties such that a person can be assisted in their life without losing their dignity and self-determination. While the retention of rights by a ward post-decree should be dependent upon the ward’s actual capacity, rather than the attorney representing the petitioner or the individual probate judge hearing the case, until limited guardianships are a mandatory consideration, this will be the case.

The theoretical concepts of a limited guardianship, balanced against the practical realties of a fiduciary fulfilling his or her duties, still support the use of a limited guardianship in many cases. A limited guardianship should be the first choice because convenience and cost-effectiveness should not trump an individual’s decision-making rights. Our courts are empowered to tailor the guardian’s authority to the specific needs of the ward. Attorneys and judges not only have the authority but a duty to specifically consider an individual’s capacity and to respect their abilities by crafting tailored limited guardianship decrees where appropriate.

End notes

1.    As a practitioner’s note, where a limited guardianship is in place and the court is asked to clarify the guardian’s authority, a specific finding by the court should be made as to the ward’s ability to make a certain decision.

©2014 Massachusetts Bar Association