A brief guide to legal healthcare documents

Guardianship: Appointed when a person becomes incapacitated, the guardian has authority to make decisions pertinent to person’s support, care, education, and healthcare treatment decisions.

Conservatorship: Appointed when a person becomes incapacitated, a conservator has authority to manage real and personal property of an individual.

Healthcare Proxy (HCP): Created before a person becomes incapacitated, it gives authority to a make healthcare treatment decisions. It is invoked upon an individual’s incapacitation.

Durable Power of Attorney (DPOA): Created before a person becomes incapacitated, it grants authority to manage regard to real and personal property of an individual. A durable POA may continue to be in effect after the individual becomes incapacitated. Some DPOA’s include medical care (MDPOA).

Generally speaking, a guardianship is sought when there is no healthcare proxy or medical durable power of attorney in place. Healthcare providers are often in the position of petitioning the court for guardianship when there is no other responsible or willing person available to obtain the guardianship. The need for guardianship must be supported by a licensed clinician or clinical team report that certifies incompetency.

In contrast, a conservatorship is sought when there is no durable power of attorney in place before the individual became incapacitated. Conservatorship requires proof of bond(1) as well as a medical certificate (to certify incapacity) signed by a licensed clinician or clinical team report. In Massachusetts, the medical certificate is a seven page form available on the Mass.gov website.

healthcare proxy

When a healthcare proxy is in place, it trumps a guardianship, so it is important to know whether one exists before seeking a guardianship. If a medical durable power of attorney is in place it will trump any healthcare proxy and a medical durable power of attorney trumps a conservatorship. However, a durable power of attorney and/or HCP can be revoked upon a showing of exceptional circumstances such as fraud or other significant circumstance such as death of proxies.

Footnote 1. A conservatorship bond is a type of court bond that ensures the court-appointed individual will fulfill their obligations. The cost is usually equal to all of the assets of the patient, plus one year of their income. Once the court established the conservatorship, the court typically will reimburse the conservator from the assets of the patient.

For more information on guardianships, contact Linda at 781-272-8001.

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