What You Should Know About Guardianship—In Case A Parent or Loved One Becomes Incapacitated

Whether through illness, injury, or other means, anyone can require a guardian to become appointed if they become mentally incapacitated. In such cases, if there is no estate planning in place (or insufficient planning) to keep family or other loved one’s out of court, a guardianship, or conservatorship as it is sometimes called, must be established via a court process in the county probate court.

Obtaining guardianship can be an extraordinarily challenging and expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the incapacitated person incompetent. In some cases, these types of filings are made “ex parte”, or in secret, and a guardianship can be established before family or close friends even know what’s happening. In other cases, such a filing can result in a heated dispute between family members and/or friends, who may claim they’d be better suited for the role. Given this, things can get quite costly very quickly.

Of course, this assumes these matters haven’t already been decided through proper and up-to-date estate planning, including a valid durable power of attorney and advance health care directives, which are the best methods for ensuring this massive responsibility is handled as effectively as possible. Sadly, most people don’t think of the costly possibility of incapacity and therefore leave their families at risk.

If you do have a loved one who needs a guardian, here are some of the things you’ll need to know:

Who can be appointed as guardian?

Unless specified in a valid legal document, any family member or other interested person can petition for guardianship—even a close friend can do it if they prove they’re best suited for the position. That said, most courts give preference to the ward’s spouse or other close family members. In some cases, the guardian is required to post a bond, which typically requires good credit and some level of deposit to be held in the event of the guardian’s wrongdoing. This bond requirement often disqualifies friends and family, who either don’t have good credit or the resources to post a bond.

If a relative or friend is not willing—or capable—of serving, the court will appoint a professional guardian or public guardian. This is one of the ways that an estate can be drained extremely quickly.

When are guardians appointed?

A guardian will only be appointed if a court determines there is enough evidence to show a person is mentally incapacitated, such that they can no longer make legal, financial, and/or health-care decisions.

What are a guardian’s responsibilities?

Depending on the extent of the ward’s mental capacity, a court-appointed guardian can be given near complete control over a person’s life and finances. Some of the most common duties include:

● Paying the ward’s bills
● Determining where they live
● Monitoring their residence and living conditions
● Providing consent for medical treatments
● Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
● Managing real estate and other tangible personal property
● Keeping detailed records of all their expenditures and other financial transactions
● Making end-of-life and other palliative-care decisions
● Reporting to the court about the ward’s status at least annually

The extent of duties the guardian is responsible for is up to the court, and the guardian will not be allowed to act in areas the court has not authorized. Moreover, guardians are required to seek the ward’s preferences whenever possible—though ultimately, the decision about what action to take will be in the guardian’s hands.

The court can also divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. What’s more, the court often requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.

Are guardians compensated?

Yes, guardians are entitled to reasonable compensation for their services based on the ward’s financial ability to pay. The appointed guardian is paid directly from the ward’s estate. In most cases, the compensation must be approved by the court ahead of time, and the guardian must carefully account for all of their services, the time spent on tasks on behalf of the ward, and any associated out-of-pocket expenses.

Given the huge level of responsibility and loss of control that comes with guardianship, the best course of action would be to get proper and updated estate planning in place ahead of time to ensure that if you or anyone you love becomes incapacitated, you can stay out of the court process altogether if possible.

Contact us as your comprehensive estate planning attorneys, to schedule a Family Wealth Planning Session—first for yourself—and then for the people you love before something happens to make it too late to plan. If it’s already too late and you’re reading this article because you need assistance petitioning a court for guardianship, contact us now to mitigate the risks, hassles, and expense.

From our family to yours,

As a parent, you may have questions about what you really need in place to protect your kids, your family, your assets, and yourself. From guardians and trusts to wills and health care documents, it can be hard to know where to start. Read on for answers to some of the most common estate planning questions we hear from parents.

Question 1: What is an estate plan?

When people hear the word estate, they often imagine mansions or large investments, but your estate is simply everything you own: your home, savings, personal belongings, and, most importantly, the people you want to protect.

Estate planning is about making thoughtful decisions ahead of time. It allows you to decide who would care for your children, who would make financial or medical decisions if you couldn’t, and how you want your assets managed and distributed.

Whether you’re just starting your career, growing your family, or planning for retirement, an estate plan gives you the opportunity to make those decisions yourself rather than leaving them to default state laws.

Question 2: Do I really need an estate plan if I’m young and healthy?

Even if you’re young and healthy, estate planning matters because life can change in an instant.

With a plan, you name guardians and decision-makers. Without one, many of those decisions may be left to the court or determined by state law. For example, if both parents are unable to care for their children and no guardian has been named, a court will appoint one.

A thoughtful plan can protect your family’s future, provide guidance, and help ensure your children’s inheritance is handled the way you intend.

Online forms and AI tools can be useful for general education, but they can’t provide legal advice or tailor a plan to your needs. An experienced estate planning attorney can help create a plan that’s customized, complies with state law, and is designed to hold up legally when your family needs it most.

Question 3: What documents are included in an estate plan?

A comprehensive estate plan includes several key documents that work together to protect your family.

A Will lets you name guardians for your minor children and direct how your assets are distributed.

A Revocable Living Trust can help avoid probate and provide more control over how assets are managed and distributed.

A Durable Financial Power of Attorney allows someone you trust to manage your financial affairs if you become incapacitated.

A Health Care Proxy allows you to appoint someone to make medical decisions on your behalf if you’re unable to do so.

A HIPAA Authorization gives the people you choose permission to access your medical information when needed.

The right combination of documents depends on your stage of life and your family’s unique needs.

Question 4: Do I need a will, a trust, or both?

This is one of the most common questions parents ask, and the answer depends on your goals.

A will allows you to name guardians for your minor children and direct how your assets are distributed.

A revocable living trust is often used alongside a will. It can help avoid probate, provide privacy, and give you more flexibility in how assets are managed and distributed.

For parents of young children, one of the biggest advantages of a trust is the control it provides. A trust lets you decide when and how your children receive their inheritance rather than having assets become available when they reach legal adulthood. Without that structure, significant assets like a home or investments may become available at a much younger age than most parents feel is wise. A trust also allows you to appoint someone you trust to manage those assets until your children reach the ages or milestones you choose.

For many families, the right solution includes both a will and a trust. It depends on factors like home ownership, the age of your children, and whether you want to avoid probate or set conditions for an inheritance.

Often, the better question isn’t “Do I need a will or a trust?” but “What do I want my plan to accomplish for my family?”

Question 5: How much does estate planning cost?

The cost of estate planning can vary widely depending on your family’s unique situation, goals, and the complexity of the plan.

The most important question isn’t simply what it costs, but what level of planning will best protect your family.

Once an attorney understands your goals and your situation, they can recommend the right approach and explain the fees up front.

Question 6: What happens if I don’t have an estate plan?

There is always a plan. It just may not be the one you would have chosen.

If you don’t create an estate plan, Massachusetts law provides a default plan for many important decisions. Those laws are meant to provide a framework, but they can’t account for your family’s unique needs or your preferences.

Without a plan, a court may need to appoint guardians for your minor children. Assets will be distributed according to state law, and your loved ones may experience unnecessary delays and additional stress.

Creating a plan allows you, not the state, to make those important decisions and provides clear guidance when your family needs it most.

Question 7: How do I choose a guardian for my children?

Choosing a guardian is one of the most important decisions parents make, and it can also be one of the toughest.

Many families struggle to find the one “perfect” person. At our firm, we help parents think through the decision and identify the best fit for their family. We’ll discuss questions you may not have considered, explore different scenarios, and help you make a decision that reflects your values and gives you confidence in your plan.

Thoughtful estate planning also allows you to clearly document your wishes. In some situations, parents have strong feelings about people they do not want serving as guardians. Clearly expressing those preferences in your legal plan can provide important guidance and help reduce uncertainty if difficult decisions ever need to be made.

Remember, naming a guardian isn’t permanent. As your children grow and circumstances change, your plan can be updated to reflect your family’s evolving needs.

Question 8: What happens if I don’t name a guardian?

If both parents are unable to care for their children and no guardian has been named, a court will appoint someone.

The court’s responsibility is to act in the child’s best interests, but without your guidance, the court could appoint someone you would not have chosen.

By naming a guardian, you provide the court with important guidance about who you believe is best suited to raise your children.

Question 9: When should I update my estate plan?

Estate planning isn’t something you do once and forget. Your plan should grow and change as your life does.

It’s a good idea to review your estate plan after major life events, including:

Getting married or divorced
The birth or adoption of a child
When your children become legal adults
Buying or selling a home
Receiving a significant inheritance
Starting or selling a business
A significant change in your financial situation
The death or incapacity of someone named in your plan, such as a guardian, trustee, executor, or agent under your power of attorney
Moving to another state
If your child is diagnosed with special needs, or if their diagnosis, abilities, level of independence, or long-term care needs change over time
Every three to five years, even if nothing major has changed

At our firm, estate planning is an ongoing relationship, not a one-time transaction. As your family grows and life changes, we’ll help you review and update your plan so it continues to reflect your wishes and protect the people you love.

Question 10: Can I create my estate plan using AI or online forms?

AI tools and online forms can be helpful for learning basic concepts or organizing your thoughts, but they can’t give legal advice or evaluate your family’s unique situation.

An estate plan is more than a set of forms. It’s a coordinated legal strategy designed around your specific goals and family dynamics.

If key issues aren’t addressed, certain decisions may default to state law, which can lead to unintended results.

Working with a qualified estate planning attorney who works with young families every day helps ensure your plan is tailored to your family’s needs and wishes. Rather than a one-time transaction, you’ll have a trusted advisor who can help keep your plan current as life changes.

Question 11: How do I get started?

Getting started is often easier than people expect.

The first step is scheduling a complimentary 15-minute call with our Client Services Coordinator.

You don’t need to have all the answers before you reach out. You don’t need to know exactly who you’d choose as guardians or what documents you need. That’s what we’re here to help with.

During that call, we’ll learn a little about your family, answer your initial questions, explain what to expect, and help determine the next best step.

If it makes sense to move forward, we’ll schedule a planning session with one of our attorneys, where we’ll talk through your goals, explain your options in plain language, and help you feel confident about the path forward.

Our goal is to make estate planning approachable, understandable, and personal so you can move forward with confidence, knowing your family is protected.

Question 12: What can I expect during my planning session?

Your planning session is a conversation, not a presentation.

We’ll take time to get to know you, listen to your goals, and answer your questions. We’ll walk you through decisions you may not have thought about, such as guardianship and how and when assets should pass to your children.

By the end of your planning session, you’ll have a clear understanding of your options, what we recommend, why we recommend it, and what the next steps look like.

Our goal isn’t simply to create legal documents. It’s to help you build a thoughtful estate plan that reflects your wishes and protects the people you love.

Question 13: How long will my estate plan take to complete?

Creating your estate plan begins with your planning session, and we ask clients to reserve about 90 minutes so we can truly understand your family and your goals.

During the first part of your planning session, we’ll get to know you, answer your questions, explore your wishes, and discuss what’s most important to you. We’ll explain your options in plain language and recommend the level of planning that’s right for your family’s unique situation.

If you decide to move forward with our firm, the second part of the planning session is spent beginning to design your estate plan. Together, we’ll map out the important decisions and gather the information needed to prepare documents that reflect your wishes and protect your family.

It takes about four weeks from your planning session to signing your estate planning documents. A lot will depend on how quickly you’re able to finalize your decisions. It’s important to remember that nothing is legal until it is signed, so we move you to your signing meeting as quickly as possible.

We’ll be with you every step of the way, keeping you informed so you’ll always know what to expect.

Ready to protect your family? Schedule a complimentary 15-minute call with our Client Services Coordinator to get started. Let’s chat.

The Parents Estate Planning Law Firm, PC

At The Parents Estate Planning Law Firm, we answer your questions at your convenience; we stay in frequent communication; and we meet to discuss changes in life circumstances and in the law to ensure that your assets are protected.