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.