The Massachusetts Adult Guardianship System

In Massachusetts, guardians can be appointed (and removed) by the Probate and Family Court to make decisions on behalf of adults who lack decision-making capacity. Conservators, on the other hand, can be appointed (and removed) by the Probate and Family Court to manage the finances and assets of an adult who lacks the capacity to do so. The court can limit the scope of a guardianship to the areas of life over which the adult lacks the capacity to make their own decisions. Both nationally and in Massachusetts, there has been an outcry in recent years over abuses by unscrupulous and abusive guardians, as well as a movement to embrace alternatives to guardianship like supportive decision-making.

This legislative session, the Joint Committee on the Judiciary heard testimony relating to guardianship and decisional support services. S1177, the bill originally filed, sought to create an Office of Adult Guardianship and Decisional Support Services within the Executive Office of Health and Human Services, which would be charged with appointing a non-profit organization to act as Public Guardian. The primary goal of the legislation, as stated by the proponents of the legislation, was to address an unmet need in the Commonwealth: to provide guardianship services for the “unbefriended”- those lacking both capacity to make at least some decisions for themselves and lacking the friends, family, or resources to find someone to act as their court-appointed guardian.

Although Senator Brownsberger was convinced (and the Committee heard consistently) that this unmet need was real, the Committee also heard concerns from several stakeholders about the fiscal impact, the immunity provisions of the legislation, as well as whether the legislation could be improved to address more directly abuses by predatory guardians.

The Joint Committee on the Judiciary chose to include the Public Guardian bill in a study order but reported a bill that would establish a special commission to study our adult guardianship and conservatorship system. The Senate included in its final budget a provision that would establish a similar commission, following the adoption of an amendment offered by Senator Creem and co-sponsored by Senator Brownsberger. This language is currently under consideration by the FY2019 budget conference committee. We should learn soon how the amendment language fared in conference. The substance of the Senate budget language reads as follows:

 

There shall be a special commission to study adult guardianship and conservatorship practices in the commonwealth. The commission shall consist of the following members or their designees: the house and senate chairs of the committee on children, families and persons with disabilities, who shall serve as co-chairs; the secretary of the executive office of health and human services; the chief justice of the probate and family court; 1 representative from each of the following organizations: AARP Massachusetts, The ARC of Massachusetts, Massachusetts Alzheimer’s Association, National Association of Social Workers Massachusetts, Mass Home Care, Disability Law Center, Inc., Massachusetts Health and Hospital Association, Inc., Center for Public Representation, Inc.; 1 person who shall be a member of Massachusetts Advocates Standing Strong, Inc.; 1 person who shall be a member of the committee for public counsel services who practices guardianship or disability law; 1 person who shall be a member of the National Academy of Elder Law Attorneys Massachusetts who practices guardianship law; 1 person who shall be an employee of Greater Boston Legal Services, Inc. who practices guardianship or disability law; 1 person who shall be a member of the Massachusetts Medical Society; 1 person who shall be a competency-expert faculty member or equivalent at the Harvard Medical School; 1 person who shall be a member of the Massachusetts Guardianship Policy Institute; and 2 persons to be appointed by the governor, 1 of whom shall be selected from at least 3 persons nominated by the National Association to Stop Guardianship Abuse and 1 of whom shall be a person under guardianship with a family guardian or conservator, who may be accompanied by his or her guardian or conservator.

The study shall include, but shall not be limited to: (i) a review of unmet needs in the commonwealth’s adult guardianship and conservatorship systems; (ii) recommendations on how best to meet the needs of adults with diminished capacity who lack financial resources or family or friends; (iii) an examination of the role that an office of public guardian might have in addressing unmet decisional needs in the commonwealth; (iv) an examination of methods to identify, prevent and remedy guardianship and conservatorship abuses; (v) an examination of the appropriate collection of fees by guardians and conservators; and (vi) a review of alternatives to guardianship, including, but not limited to, supported decision-making and other ways to encourage the use of such alternatives where appropriate.

Not later than July 31, 2019, the commission shall submit a written report of its findings, including legislative recommendations, to the clerks of the senate and the house of representatives, the senate and house committees on ways and means and the joint committee on children, families and persons with disabilities.

 

 

Published by Anne Johnson Landry

Anne works as Committee Counsel and Policy Advisor to Senator Brownsberger.

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4 Comments

  1. Thank you for your report.I suggest that you include a “Mandatory Fee Schedule” for Guardians and Conservators, and Mandatory Oversight and semi-annual reporting of expenditures to a department that has sufficient staff and funding to undertake this important responsibility.
    No one should be excused of deliberate fraud and abuse of “Wards”, and no “Immunity Clause to protect them.

  2. https://www.billiemintz.com/the-guardians/

    This important timely film documentary underscores the failed guardianship public policies in Nevada. However, nationally the guardianship laws allow lawyers, guardians and the medical community to profit from this failed system. Understandably, the premise of these laws and policies appear to protect elders and citizens. Lawmakers have an opportunity to establish non guardianship policies which provide true safeguards to protect seniors from financial exploitation, isolation from loved ones and will put an end to wrongly medicating individuals who are essentially incarcerated against their will in nursing homes, hospitals…This corruption is real masked by civil court proceedings in probate and family courts. No immunity clauses protecting guardianship industry actors should be made law. Enforcing the existing constitutional and due process rights of alledged incompacitated citizens and for family members who support their opposition to costly and cruel court ordered guardianships is long overdue. Elder protection service public private partnerships need scrutiny and strict oversight not immunity. Rubber stamping guardianships and medicating these individuals until death is not what any citizen expects. A full investigation into existing Court ordered guardianships is warranted. Estate plans and health care proxies are too easily erased by Court order without evidenciary hearings. Appointing a third party guardian is a Court ordered incarceration stripping the consitutional rights of seniors and citizens and allows the financial takeover of life long savings.
    In discovering the horrors of existing failed guardianship laws in Massachusetts and in other states across the nation this failure provides a timely opportunity to establish and implement non guardianship public policies to save lives and protect life long savings. Consequently, instituting a public guardian system is not the remedy. I look forward to working with elected officials and advocates to discover non guardianship solutions.

    Sincerely.

    Pamela S. Julian
    Brookline

  3. I am always amazed at the lengths elected officials will go to, to preserve the system “as is”. A “study”? Really? Just how much more information would this committee need, how much more evidence would have to pile up before those in government at any level admit to the problems and move to actually repair the damages being done.

    Unsoundedness of mind and other discriminatory labels are not legitimate reasons for the denial of legal capacity (legal standing and legal agency).

    but this deals with law…something that is glaringly lacking in all the posturing that accompanies the statutory civil deaths that occur routinely in these tribunals.

    A first step in correcting what has become a system of predators-for-profit, would be to disbar the BAR, return law making to the state and oversight of these BAR union members to the legislature. Self policing never works as is evidenced by the continued corruption without penalty where BAR members are involved.

    But none of this will happen will it? Just as quick as any politician even suggests such a thing, the campaign “contributions” in the hundreds of thousands will start rolling in the back door and the issue will simply disappear.

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