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Hear from COFAR
Voice your opinion
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Know the Regulations
DMR regulations (115 CMR 5.07) specify the circumstances under which guardians can be appointed for persons with mental retardation. The regulations recognize two broad types of guardianship services for persons with mental retardation--financial guardianship and personal guardianship:
1. Financial guardianship:
Under 115 CMR 5.07(2), if an individual's ISP team has reason to believe that he or she is not competent make "informed decisions" with regard to financial affairs, the DMR or provider agency head must notify the person's nearest living relatives in writing, with an accompanying recommendation that steps be taken to protect the person's finances.
There are several levels of financial guardianship services that are specified in the regulations. Among the "least restrictive" are appointment of a "representative payee" for the person with mental retardation, or appointment of a "co-signatory bank account" or of a "shared or delegated money-management plan." As representative payee of a person with mental retardation has control over such things as the person's Social Security benefits and any personal funds accounts, which the person might have.
If DMR or a provider agency has reason to believe that a representative payee, co-signatory bank account, or a shared or delegated money management plan are inadequate to protect the individual "from a substantial and unreasonable risk to his or her property," they can recommend a more restrictive guardianship service--specifically appointment of a trustee, conservator, or guardian of the estate. These more involved guardianship arrangements are normally recommended if the person has cash or assets easily converted into cash in excess of $10,000.
A conservator, for instance, manages a ward's financial assets, such as bank accounts, paychecks or stocks and bonds. A conservator is also responsible for paying the ward's bills and debts out of the ward's assets; and a conservator is responsible for initiating or answering any legal actions that concern the debts owed by or to the ward.
2. Personal Guardianship
Under 115 CMR 5.07(3), if an individual's ISP team has reason to believe that an individual is not competent to "make informed decisions with regard to personal affairs," the DMR or provider agency head must notify the individual's nearest living relative in writing, with recommendation for services necessary to help the individual in decision-making. That recommendation might be to appoint a guardian if the DMR or provider agency head believes that less restrictive alternatives or
services are inadequate to protect the person from an "unreasonable risk to his or her health and welfare." The regulations further state that the type of guardianship recommended must be "the narrowest and least restrictive necessary."
Appointment of a Guardian other than a Family Member
In cases in which the nearest living relative cannot be found or is incapable or unsuited for or not interested in becoming a guardian, the DMR or a provider agency head are authorized under DMR regulations to recruit a trustee, conservator, or a guardian, as they deem appropriate [115 CMR 5.07(4)]. Under this regulation, DMR or the provider agency head must attempt to ensure that:
- Temporary guardians are available to meet emergency situations;
- Persons requiring trustees, conservators or guardians are identified and the appropriate relatives are contacted;
- Suspected improprieties of a trustee, conservator, guardian, representative payee, or other fiduciary are reported to the probate court, the DMR, and other appropriate authorities; and
- The DMR or provider agency provide persons who ask with an explanation of trusteeship, conservatorship, and guardianship; and, refer those persons to appropriate legal assistance if they request or need it.
NOTE: If you are contacted by DMR or a provider about the need for a guardian of a family
member of yours, you should strongly consider seeking to become that person's guardian if you want a continued say in his or her care. If not, DMR may secure professional guardianship services from a provider agency, which may or may not have the resources to ensure adequate and competent care for your family member.
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