Not a Lexis+ subscriber? Try it out for free.

Estate and Elder Law

New 3rd Edition Released: Guardianship and Conservatorship in Massachusetts

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. 

Sign in with your ID to access this treatise.

Click here to order the full text of this treatise if you do not have a ID.

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


Table of Cases

Table of Authorities





Copyright © Matthew Bender & Company, Inc., a member of the LexisNexis Group.


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


 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.


Sign in with your ID to access Estates, Gifts & Trusts and Elder Law resources

Discover the features and benefits of LexisNexis® Tax Center

LexisNexis Publications:

View the LexisNexis Catalog of Legal and Professional Publications

LexisNexis eBooks

Click here for a list of available LexisNexis eBooks.

Click here to learn more about LexisNexis eBooks.

For more information about LexisNexis products and solutions connect with us through our corporate site.