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The area of guardianship law impacts families with children with disabilities because when a child turns age 18, the decision-making as to the child's educational services, as determined by the IEP team (or case conference committee), goes to the child, rather than the parent. Obviously in some cases, this would result in harm to the child. Therefore, parents of children with disabilities will have their children sign either powers of attorney to allow the parents to continue the make the educational decisions or the parents will obtain a guardianship in court.

When a person can no longer manage property or provide self-care, a guardianship may be appropriate. Guardianships can provide important protection to someone who is considered incapacitated because they are unable to make any informed decisions with regard to their education, living arrangements, health, well-being and among other things.

In Massachusetts, Guardians may be appointed for protection of the person only. A conservator must be appointed to protect property and business affairs of a person in need of protection.

A guardian may be appointed for an incapacitated person "who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."

A conservator may be appointed for a person to be protected if "the person is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make or communicate decisions, even with the use of appropriate technological assistance, or because the individual is detained or otherwise unable to return to the United States; and the person has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, and welfare of the person or those entitled to the person's support and that protection is necessary or desirable to obtain or provide money."

Note the difference in terminology. Guardians are appointed for incapacitated persons, and conservators are appointed for persons to be protected.

In Massachusetts, there are limited guardianships, temporary guardianship and full/general guardianships.

All too often plenary or full guardianship appointments are made when a person's incapacities are limited in scope and the individual displays only some areas of diminished functionality. The new Medical Certificate form requires information which will highlight functional capacities and incapacities and promote the creation of limited guardianships. The concept of limited guardianship allows the Court to address specific areas of incapacity and tailor guardianship decrees (letters) to meet an individual's unique circumstances. Individuals may be competent for one purpose and not competent for another. For example, if appropriate, a guardianship may be limited or apply only to medical treatment decisions. Orders curtailing or removing an individual's liberty should be made only to the extent absolutely necessary to protect the individual from harm.

While a petition for the appointment of a guardian is pending, if an incapacitated person has no guardian, and the Court finds that an emergency exists that will likely result in immediate and substantial harm to the health, safety or welfare of the person alleged to be incapacitated, and no other person appears to have authority to act in the circumstances, on appropriate motion, the Court may appoint a temporary guardian who may exercise only those specific powers granted in the order. The appointment may be for a period of up to 90 days except that upon a finding of extraordinary circumstances set forth in its order, the Court may order an appointment for a longer period to a date certain. The Court may for good cause shown extend the appointment for additional 90 day periods.

A full/general guardianship generally removes from an incapacitated person all personal decision-making responsibility and authority. Under the current law, clinicians and the Court must now consider whether an incapacitated person's legal rights can be preserved in specific areas and whether the guardianship can be limited or tailored accordingly. See discussion of Limited Guardianship above.

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Education Consulting, Advocacy & Legal Services, LLC
999 Broadway, Suite 301
Stonehill Corporate Center
Saugus, MA 01906
Telephone: 781.231.IDEA (4332)
Fax: 781.231.FAPE (3273)