01.23.09
Conservator or Guardian?
In furtherance of the objective to protect the liberties of a disabled person and encourage limitations on orders restricting those liberties, the new Massachusetts Probate Code distinguishes between conservators and guardians. After the effective date (July 1, 2009) guardians may be appointed only for protection of the person. A conservator must be appointed to protect property and business affairs. If both are needed, 2 petitions and 2 appointments are required, though they may be consolidated. [1-302(d)]
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”. [5-101(9)]
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”. [5-401(c)]
Note the difference in terminology. Guardians are appointed for incapacitated persons and conservators are appointed for persons to be protected. Only minors are wards.
Conservators must file an inventory and accounts in the traditional manner, but they must add to the account a listing of services provided and a recommendation as to the continued need or changes in the scope of the conservatorship. [5-418(b)] Guardians, on the other hand, must provide within 60 days of appointment and annually thereafter a report of the condition of the person. The report will include the current mental, physical and social condition; living arrangements, services provided, summary of guardian visits, comment on treatment, plans for future care and a recommendation as the continuation and scope of the guardianship. [5-309(b)] The court is mandated to establish a system to monitor accounts and reports.