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Guardianship

With a little support, adult individuals with intellectual disabilities or mental illnesses often lead independent and fulfilling lives. For example, the Massachusetts Vocational Rehabilitation Services program, with offices throughout the Commonwealth, including in Lawrence, Lowell, Malden, Salem and Somerville on the Northshore, offers assistance to individuals with disabilities to obtain and maintain employment. However, some disabled individuals require additional support in their personal lives when they are unable to make certain decisions on their own behalf. In such situations, a guardianship may be appropriate.

commerce-acts-books-477966-mGuardianship is a formal proceeding in the Probate and Family Court that grants the court appointed guardian legal authority to care for and make decisions on behalf of an incapacitated person. An incapacitated person is defined as “an individual 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.” MGLC 190B, §5-101(9). The guardian may be granted plenary or complete authority to make decisions on behalf of the incapacitated person; however, a limited guardianship that only grants the guardian decision making authority where the incapacitated adult cannot make her own effective decisions, is favored. The purpose of a guardianship is to promote the safety and well-being of an incapacitated individual, not to take away an incapacitated person’s independence.

The Probate and Family Court will tailor the guardianship to the incapacitated person’s specific needs in order to promote self-reliance. The question becomes, “what is in the best interest of the incapacitated person?” To answer this question, the court will consider evidence and arguments not only from the person seeking the guardianship, but also from the incapacitated person herself and any other interested person. Last year, in the matter of Guardianship of B.V.G., the Supreme Judicial Court of Massachusetts provided guidance as to who is considered an “interested person.”

B.V.G. was a young woman with intellectual disabilities. When B.V.G. was twelve, her parents were divorced and her father was awarded sole legal and physical custody. After the father was awarded custody of B.V.G., he did not allow her to socialize with her maternal relatives, including her grandfather. When B.V.G. turned eighteen and was considered an adult, her father filed a petition with the Probate and Family Court seeking to be appointed as her guardian. The father was appointed as her temporary legal guardian and subsequently filed a petition seeking permanent guardianship. As B.V.G.’s temporary guardian, the father continued to prevent B.V.G. from contacting her grandfather.

B.V.G.’s maternal grandfather filed a motion to intervene in the permanent guardianship proceedings. The grandfather requested that the court limit the father’s guardianship of B.V.G. so that she could see him. The father contended that the grandfather could not intervene in the guardianship proceedings because he was not an “interested person” as provided by statute.

MGLC 190B, § 1-201(24) enumerates specific individuals who are considered “interested persons” including: “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claims against a trust estate or the estate of a decedent, ward of protected person.” The grandfather did not fall into any of the specific categories. However, the court recognized that the statute also has a catch-all provision that states, “[t]he meaning [of ‘interested person’] as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.”

The court determined that in a guardianship proceeding, the meaning of an “interested person” under the statute’s catch-all provision is “a person interested in the welfare of the incapacitated person.” The court found that the grandfather having demonstrated an interest in B.V.G.’s welfare, was considered an “interested person” and had standing to seek limitations on the father’s guardianship powers.

The court’s decision in the matter of the guardianship of B.V.G. highlights the importance of limiting a guardianship to protect and preserve the interests of the incapacitated person. With any guardianship proceeding, the interests of the incapacitated person also include developing their independence and self-reliance.