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Guardianships

Sometimes in life, things happen which require the appointment of a “Guardian.” A “guardian” is someone appointed to care for another when an individual cannot care for him or herself due to incompetence. A person may be declared incompetent for reasons such as age (eg, a child), physical disability or mental disability (such as mental illness, mental retardation, dementia, alzheimers, etc.).

The two types of guardianships which are dealt with most often in the probate and family court are a guardianship for a minor child or a guardianship for a mentally impaired individual.

Guardianship of a child:
When a parent or parents are not able to continue to care for a child for any reason, a Petition for Appointment of Guardian may be made to the court. If after hearing, the court determines that a guardianship is necessary to protect the child(ren), the court will appoint such a guardian. Although an appointment of guardian is made this does not mean that parents will not be able to visit with or have contact with their children. The court, in any guardianship appointment may allow visitation with the parents (usually supervised based on the circumstances).

The guardian stands in the place of the parent for as long as the guardianship continues. Whatever the reason that a child is appointed a guardian, the situation does not have to be permanent. In situations where a parent or parents are no longer able to care for their child(ren) due to substance abuse, the situation can turn around if the disability no longer exists (e.g., if the parent becomes “clean”). If the reason for the appointment no longer exists, a parent may petition the court to terminate the guardianship and restore custody to the biological parent.

Please remember that although an appointment of Permanent Guardian is made by the court, this does not mean that it is “permanent.” A permanent guardianship can and will be revoked by the court upon a showing by a parent that the disability no longer exists and the parent can prove to the court that they are fit to regain custody of their child(ren).

Under Massachusetts law, a parent has paramount rights and as long as the court determines that a parent is fit and the termination of a guardianship is in the best interest of the child(ren), the court will restore custodial rights to a parent.

Guardianship of a Mentally Impaired Individual:
Most guardianships of an incompetent individual deal with individuals who are mentally ill or mentally challenged. A diagnosis of mental illness does not in itself render an individual incompetent. Before a Petition for Guardianship is allowed by the court of a mentally ill or mentally challenged individual, a physician (in cases on mental illness) or a clinical team report (in cases of mental retardation) must be filed a report with the court. Only after a hearing with medical documentation, is an appointment of guardianship made by the court.