return to home page GUARDIANS CONSERVATORS
Guardians and conservators are persons appointed by the Probate Court. The person for whom they are appointed is called a ward.
A guardian is appointed for a ward when the Probate Court determines that one of the following circumstances exist:
1. The ward is a minor (less than 18 years of age);
2. The ward is mentally ill as evidenced by the opinion of a qualified physician;
3. The ward is mentally retarded, as evidenced by the opinion of a qualified physician;
4. The ward, because of excessive drinking, gambling and the like, wastes or lessens his estate, is commonly called a "spendthrift".
In each of the foregoing situations except in the case of minors, it must appear to the Probate Court that the ward is incapable to such a degree that he or she is unable to make informed decisions regarding his/her personal and financial affairs.
A conservator is appointed for a ward when the Probate Court determines that one of the following circumstance exist:
1. The ward is of advanced age;
2. The ward suffers from mental weakness;
3. The ward is mentally retarded;
4. The ward suffers from physical incapacity.
In each of the foregoing situations, it must appear to the Probate Court that the ward is incapacitated to such a degree that he/she is unable to make informed decisions regarding his/her financial affairs.
Duties of a Guardian and a Conservator:
Guardians and conservators have many duties in common and are subject to the supervision of the Probate Court. Some of these duties are set forth below. The list is not complete, but rather a general indication of the scope of the duties and responsibilities:
1. Pay the ward's debts (from the assets of the ward);
2. Represent the ward in all litigation;
3. Control and manage the ward's property;
4. Invest the ward's funds;
5. Collect funds due the ward;
6. Support the ward and his/her family from the ward's funds
7. Sell, lease or mortgage the ward's property, with the approval of the Probate Court
A guardian, unlike a conservator, has custody of the person of his ward. Also, a guardian must consent to such matters as medical treatment and where the ward will reside.
Who May Be Guardian or Conservator:
The law gives no preference to any particular class of persons or relatives. Any person who is proper and fit is eligible. Notice must be given to immediate family members prior to any appointment being made by the court. The paramount consideration of the Probate Court is the welfare of the ward and the appropriateness of the appointment to meet the ward's needs.
Fees of a Guardian or Conservator:
The reasonableness of fees is ultimately determined by the court. A court usually will take into consideration the size of the ward's estate, the responsibilities placed on the guardian or conservator and the amount and complexity of the work involved. Corporate guardians and conservators, such as banks and trust companies, base their fees upon a percentage of the income and principal each year and often include a per transaction charge. Banks publish fee schedules which are available to the public.
The Lawyer's Role
Acting as a guardian or a conservator requires a knowledge of the law, its application and requirements. A lawyer may be helpful in many ways starting with the initial application to the Probate Court for the appointment. There are the annual accounts which must be prepared for submittal to the court and the selection of competent professionals, such as accountants and investment advisors.
The above information was taken from information provided by the Massachusetts Bar Foundation