A Massachusetts Court determines whether an individual is able to manage his or her own matters in a guardianship or conservatorship proceeding. By law, all minors - under age 18 - are presumed to be in need of a legal guardian, typically a parent. For individuals over 18, a Court is reluctant to take away legal rights without strict notice requirements and medical evidence showing the need for such appointment.

The roles of a guardian and a conservator are quite distinct: a guardian decides non-financial matters: where and with whom the person lives, goes to school, receives medical treatment, etc., while a conservator makes financial decisions. A Court attempts to impose the least restrictive option, which may be the appointment of only a guardian, only a conservator, or both.
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Filing a Petition for Guardianship and/or Conservatorship is time-consuming and costly. Fortunately, this course of action can be avoided if the individual has previously signed a Durable Power of Attorney. This document ensures that the person serving as “attorney-in-fact” is the individual’s selection rather than a Court’s appointment. Having this legal document in place usually avoids the need for a Court proceeding and prevents having a Court appoint someone the individual would have never selected. With a Durable Power of Attorney, the individual chooses the person.