By Harry S. Margolis
A recent Massachusetts Appeals Court case clarifies the law around the administration of antipsychotic medications to individuals under guardianship pursuant to Rogers determinations. In accordance with the Rogers case, guardians may order the administration of antipsychotic drugs only after a so-called "substituted judgment" determination that the person under guardianship, were she competent, would agree to take the medication.
In other words, the question is not what is in the individual's best interest. Instead, the goal of the proceeding is to preserve the individual's right to self-determination and in effect to make her own health care decisions.
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Topics:
guardianship,
Rogers decisions
By Harry S. Margolis
In Massachusetts, the courts may civilly commit an individual who is of substantial risk to herself and others and may authorize the administration of antipsychotic medications. But if she has a health care proxy, who decides, the court or her health care agent?
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Topics:
guardianship,
health-care decision making,
health care proxy,
antipsychotic medications,
Rogers proceeding
By Harry S. Margolis
Guardianship and conservatorship—court appointments to make health care, financial and legal decisions for incapacitated individuals—should be last resorts, but too often are the first responses when someone with a disability reaches the age of majority or an older person begins showing signs of cognitive decline. 
Deciding whether to pursue guardianship or conservatorship
The ABA Commission on Law and Aging has created both a legal guide and a checklist to assist attorneys in determining whether guardianship or conservatorship are appropriate in particular situations, but they are just as useful for non-attorneys making the same determination.
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Topics:
guardianship
By Harry S. Margolis
On his HBO show, Last Week Tonight with John Oliver, the host provided a scary and funny explanation of how guardianship works, ending with a public service announcement by William Shatner, Lily Tomlin, and others explaining steps you can take to avoid the guardianship.
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Topics:
long-term care planning,
guardianship,
family caregiving,
elder law,
elder care,
healthcare
By Harry S. Margolis
Have you been asked to serve as an agent (or "attorney-in-fact" to use the technical term) under a durable power of attorney in Massachusetts, but you're not totally sure about your duties and responsibilities? Then you're not alone. Here's a primer.
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Topics:
trusts,
guardianship,
Estate Planning,
durable power of attorney
By Harry S. Margolis
We recommend all of our clients sign a durable power of attorney, appointing someone they trust to handle financial and legal matters in the event he or she becomes incapacitated. This can be the most important estate planning document, since it helps avoid many of the problems that may arise in the event of incapacity. The person you appoint can pay your bills, hire people to provide care, do long-term care planning, and move investments if necessary.
Without a durable power of attorney, your family may have to go to court to have someone appointed conservator or guardian, which takes time, costs money, and creates a lot of red tape. The conservator must file detailed financial accounts with the probate court and, in some cases, must get court permission to take steps that your agent could do easily with a durable power of attorney. And just think about the added cost of paying a lawyer to help with all of these tasks!
A Case In Point
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Topics:
guardianship,
Estate Planning,
durable power of attorney
By Jeffrey A. Bloom
The law deems us to be of full legal capacity when we reach age 18, unless we’re incapacitated for some reason (other than insufficient age). And everyone is presumed to be competent unless a court decides otherwise. So what should parents do when they have a special needs child who is about to turn 18? As with most things, there is no hard and fast rule or simple answer.
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Topics:
guardianship,
special needs planning
By Harry S. Margolis
My client acts as agent for her father under a longstanding durable power of attorney. Unfortunately, tensions are developing between her and her brother, who has been consulting with other attorneys about asking their father to execute a new durable power of attorney, appointing him instead.
My client wants to know how we can stop this from happening, and why the doctor's declaration that their father is no longer competent isn't sufficient.
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Topics:
family dispute,
guardianship,
Estate Planning,
durable power of attorney
By Harry S. Margolis
We received an inquiry from a nursing home employee about whether a guardian needed court approval to move a nursing home resident to another facility when she also had a health care proxy. Here, we will give a basic answer. If you need more specific information, don't hesitate to get in touch.
Under Massachusetts guardianship law, guardians must first seek court approval before placing the protected person in a nursing home. However, agents under health care proxies have the right to make health care decisions for individuals and, presumably, this would include placement in a nursing home.
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Topics:
nursing homes,
guardianship,
health care proxy
