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By Honorable Jennifer Rivera Ulwick
Unlike conservators, guardians do not handles finances, acting as conservators as they may have in the past when appointed as "guardian of the estate." Unless otherwise provided by the court, the guardian is limited to making decisions regarding the incapacitated person's support, care, education, health and welfare. This Emerging Issues Analysis written by Jennifer Rivera Ulwick, a judge in the Norfolk Probate and Family Court, explores fiduciary responsibilities and the statutory limitations placed on them in Massachusetts.
She writes: “Guardians are primarily called upon to make personal decisions on the incapacitated person's behalf. Examples might include determining the incapacitated person's place of residence or consenting to necessary medical care or other individual programs or social services. It may also be necessary for the guardian to file a petition with the Probate Court requesting that a substitute judgment determination be made for the incapacitated person regarding extraordinary medical treatment. In addition, if anti psychotic medication is authorized by the court, the guardian may be appointed to monitor the treatment process. “Both the Department of Mental Health and the Department of Developmental Services have promulgated detailed Individual Service Plan (ISP) regulations, which govern the delivery of program services to incapacitated and intellectually disabled persons. [ii] Under the regulations, a guardian is entitled to participate in the development of an ISP on behalf of the incapacitated person and, in the event of a dispute, may take an administrative appeal and thereafter judicial review pursuant to M.G.L. c. 30A. M.G.L. c. 190B, § 5-309(a) states that: “A guardian shall exercise authority only as necessitated by the incapacitated person's mental and adaptive limitations, and, to the extent possible, shall encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, to the extent known, shall consider the expressed desires and personal values of the incapacitated person when making decisions, and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence.”
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