01.23.09
Limited Guardianship
All too often plenary guardianship appointments are made when a person’s incapacities are only in some areas of diminished functionality. The new Massachusetts Probate Code should change this tendency by requiring information which will highlight functional incapacities and promote creation of limited guardianships.
A court may limit the powers of a guardian and create a limited guardianship with the limitations endorsed on the order, [5-306(c)] the purpose being to “enclourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s limitations or other conditions”. [5-306(a)] However broad or limited the guardian’s powers, he or she should encourage the person to act, participate and develop capacities to manage his or her own affairs. [5-309(a)] Indeed, the guardian should report changes status of the incapacitated person which may lead to refinement in the scope of the guardianship. [5-309(b)(7)] A ward’s liberties must be held in the highest regard and orders limiting those liberties should be made only to the extent absolutely necessary to protect the individual from harm.
The more extensive information available to the court through the new petitions and medical certificates (already required) will permit implementation of the new standard.