Taking note of the
Massachusetts legislature's enactment of many new statutory provisions
impacting guardianships, conservatorships and estate administration, Matthew
Bender has released Guardianship and Conservatorship in Massachusetts, 3rd Edition.
The entire volume was rewritten and many new chapters were added, including
those on guardianship of minors, mental health civil commitment, and standards
for appointing guardians and determining competency.
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Used by bench and bar, this complete practice manual covers
the appointment of guardians and conservators of mentally disabled individuals
and children. Learn the workings of the system - all the players, rules, and
documents that are necessary to do your job well. Using Guardianship and
Conservatorship in Massachusetts, devise strategies guided by authors who have
"been there" and understand the huge demands on your time. Learn, for
example, how to persuade the court regarding difficult questions such as: a
person's right to die, whether to medicate for psychotic symptoms, whether to
limit or expand a guardian's powers, a ward's right to vote, whether a mentally
retarded woman can be sterilized, or whether a child should be removed to the
custody of the DSS.
AUTHORS: John H. Cross,
Robert D. Fleischner, Jinanne S.J. Elder
Table of Contents
Ch 1 - Introduction to Guardianship and Conservatorship Law in
Massachusetts
Ch 2 - Guardianship Standards for Appointment and Competency
Ch 3 - Guardianship Practice and Procedure
Ch 4 - Temporary Guardianship
Ch 5 - Guardianship with Authority to Admit or Commit
Ch 6 - Medical Treatment Decisions - The Substituted Judgment
Determination
Ch 7 - Guardianships with the Authority to Administer Antipsychotic
Medication
Ch 8 - Conservatorship
Ch 9 - Guardianship of Minors
Appendix
Table of Cases
Table of Authorities
Index
SAMPLE-DOC:
GUARDIANSHIP AND CONSERVATORSHIP IN MASSACHUSETTS
Copyright © Matthew Bender & Company, Inc., a member of the
LexisNexis Group.
CHAPTER 2. GUARDIANSHIP STANDARDS FOR APPOINTMENT AND
COMPETENCY
Guardianship and Conservatorship
in Massachusetts @ 2.05E
@ 2.05E Standards for Appointment--Divorce Actions/Mentally
Ill Parties
M.G.L. c. 208, @ 15, provides that, "If during the
pendency of an action for divorce the defendant is incapacitated by reason of
mental illness, the court shall appoint a suitable guardian to appear and
answer in like manner as a guardian for an infant defendant in any civil action
may be appointed."
Whether the defendant is in fact incapacitated by reason of
mental illness is a question of fact to be determined by the court. "Thus,
the fact that at various times the defendant has suffered mental illness does
not require the appointment of a guardian . . . if there is no finding that the
defendant is mentally incompetent to defend his or her interests in the
litigation." <=1> n24
If appointed, the guardian is not under a duty to oppose the
divorce. The guardian should do what is reasonably necessary to protect the
defendant's interests. <=2> n25
Although M.G.L. c. 208, @ 15, speaks in terms of the
appointment of a guardian, in practice, the terms guardian and guardian ad
litem are used interchangeably. In addition, although the statute speaks of an
appointment for the defendant only, appointments may also be made for
plaintiffs who are incapacitated by reason of mental illness. <=3>
n26
In an unpublished decision, the Appeals Court upheld a
Probate judge's decision not to appoint a guardian ad litem pursuant to M.G.L.
c. 208, @ 15, despite the judge's finding that the wife was "afflicted
with mental illness." The Probate judge determined that the wife was not
incapacitated by reason of mental illness. In upholding the Probate judge's
decision, the Appeals Court cited that portion of the SJC's Rogers decision
which stated that: "a person diagnosed as mentally ill and committed to a
mental institution is still considered to be competent to manage {her} personal
affairs." <=4> n27
FOOTNOTES:
n24 See Kindregan and
Inker, 2 Massachusetts Practice @ 29.3 (2d ed.).
n25 Id.
n26 Harvey, Moriarity, & Bryant, Massachusetts Domestic
Relations 2d @ 9:3 (1996).
n27 <=6> Rogers v. Commissioner of Dep't of Mental
Health, 390 Mass. 489, 497, and n. 10 (1983). A copy of the Rule 1:28 opinion
appears as Appendix 2-C.
....
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