Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
When an elderly heir begins to lose decision-making capacity, Massachusetts law provides two primary routes to delegate authority over personal care and financial affairs: Power of Attorney and Guardianship/Conservatorship.
1. Power of Attorney
A Power of Attorney (POA) is a private agreement in which a competent individual (the “principal”) designates an agent to manage finances, property, or personal matters.
- Durable POA: Survives if the principal later becomes incapacitated. To create one, the document must state durability and be signed, witnessed by two adults, and notarized. See M.G.L. c.190B §5-502 for execution requirements.
- Springing POA: Becomes effective only upon a doctor’s certification that the principal is incapacitated.
- Scope: The principal may grant broad or limited powers—such as paying bills, selling property, or making health-care decisions.
- Revocation: The principal can revoke a POA at any time while they remain mentally competent.
2. Guardianship and Conservatorship
If no valid POA exists or the principal lacks capacity to execute one, interested parties may petition the Probate and Family Court to appoint a guardian or conservator under the Massachusetts Uniform Probate Code.
- Guardian of the Person: Oversees health care, living arrangements, and personal decisions. Established via petition under M.G.L. c.190B §5-301. The court holds a hearing, appoints counsel for the proposed ward, and considers medical evidence of incapacity.
- Conservator of the Estate: Manages financial assets, pays bills, and invests funds. Created under M.G.L. c.190B §5-401. A bond, annual accountings, and court supervision are required.
- Limited vs. Full Appointment: The court may tailor authority to specific decisions (e.g., only financial matters) or grant full guardianship.
- Process & Timeline: Filing a petition, serving notice on family members, medical evaluations, and a court hearing typically take several weeks to a few months.
3. Other Protective Tools
- Health Care Proxy: Separately designates someone to make medical decisions. Governed by M.G.L. c.201D.
- Living Will: States end-of-life wishes to guide health-care providers.
- Joint Ownership or Transfer on Death Deeds: Can simplify asset transfer but may have tax or eligibility implications.
Choosing the right option depends on the heir’s current capacity, the urgency of decisions, costs (court fees and possible guardian/conservator bond), and family dynamics. Working with an attorney to draft a POA or navigate the guardianship process ensures compliance with Massachusetts requirements.
Helpful Hints
- Start planning early: Encourage a POA while your heir still has capacity.
- Obtain a formal capacity evaluation from a qualified physician for springing POAs.
- Keep originals: Store signed POAs and health-care proxies in a safe, accessible place.
- Communicate with family: Inform heirs about chosen agents or pending guardianship petitions.
- Review annually: Update documents to reflect changes in health, family, or financial situations.
- Consult professionals: A probate attorney can minimize delays and filing errors.