Under M.G.L. c. 190B, § 5-401(c), a conservator may be appointed for a “protected person”—someone who is unable to manage property and business affairs effectively because of a clinically diagnosed impairment in the ability to receive and evaluate information or make and communicate decisions, even with technological assistance, and whose property will be wasted or dissipated without protective management.

Conservatorship addresses the financial dimension of incapacity. A conservator manages assets, pays bills, files taxes, and makes investment decisions on behalf of the protected person. If a conservator is appointed, the protected person typically no longer has the ability to engage in financial transactions, enter into contracts or make changes to their estate plan. In some cases, the same individual serves as both guardian and conservator; in others, the roles are split between different people. A conservator may also manage legal affairs including, for example, filing a lawsuit on behalf of the protected person or creating an estate plan for the protected person (with specifically expanded court authority to do so).

Key distinction: Guardianship governs personal and healthcare decisions. Conservatorship governs legal, financial, and property matters. Both require Probate and Family Court appointment and ongoing court oversight.

Durable Power of Attorney

A Durable Power of Attorney names an agent to manage legal and financial affairs on behalf of the principal. The “durable” designation is critical: it means the document remains valid even if the principal loses capacity.

Key drafting considerations include making the document immediately effective rather than contingent on a physician’s finding of incapacity (which can be difficult to obtain and may delay the agent from acting), granting broad powers across financial and legal matters.

Health Care Proxy

A Health Care Proxy designates an agent to make medical decisions when the individual is unable to do so. Unlike the Durable Power of Attorney, the Health Care Proxy must be invoked—typically by a physician’s determination of incapacity—before the agent’s authority takes effect. The individual who signs a Health Care Proxy retains the right to revoke it at any time, provided they have the capacity to do so. If that capacity is later called into question, a court may be asked to determine whether the revocation is valid.

A well-drafted proxy grants broad authority, should be on file with the individual’s physicians, and is best when accompanied by a separate HIPAA Authorization so the agent can access the medical information needed to make informed decisions. A Health Care Proxy that is properly in place and functioning can eliminate the need for guardianship in the healthcare decision-making context.

Trust Planning

A Revocable Living Trust allows the grantor to manage assets during his or her lifetime while providing seamless transfer of management to a successor trustee upon incapacity or death—without court involvement. Additional structures relevant to incapacity planning include Supplemental Needs Trusts and Pooled Trusts, which can both be either first party or third party, each of which has distinct implications for public benefit eligibility.

The choice of trustee and the mechanism for appointing successors are critical drafting decisions. A trust that names only one trustee and provides no clear succession mechanism can create management gaps at exactly the moment the structure is needed most.

A Note on Capacity to Sign Wills, Trusts, Durable Powers of Attorney and Health Care Proxies

Capacity is assessed in the moment of signing. If a person lacks capacity and no prior planning exists, court proceedings can still be initiated to create an estate plan using guardianship or conservatorship—but this path is more cumbersome than acting proactively to execute documents before court involvement is necessary.

Common Grounds for Contest

• The respondent does not need a protective arrangement or the protective arrangement sought is too broad.
• The respondent objects to the proposed appointee.
• An interested party other than respondent objects to the proposed appointee. Often the objector is another family member, such as a parent, child or sibling.

Timing matters as well. A contest may arise at initial appointment or later by way of a petition to remove and potentially replace a sitting fiduciary.

Procedural Overview

1. Develop a clear understanding of the case before engaging the court: Is the contest about incapacity itself? The proposed appointee?
2. File a timely notice of appearance and formal objection with the Probate and Family Court. For an existing appointment, file a petition for removal and possibly a petition to appoint a successor.
3. Gather supporting evidence: affidavits from medical professionals and family members, and where the contest turns on capacity, an expert medical evaluation to rebut the petitioner’s evidence.
4. Attend the hearing and present to the judge why the protective arrangement is inappropriate, should be limited in scope, or should be terminated.

In Massachusetts, respondents have the right to participate in proceedings, to be represented by counsel, and to have their preferences considered by the court.

Guardian Reporting Requirements

• Initial Care Plan: Filed within 60 days of appointment, detailing the incapacitated person’s health and living situation and the guardian’s planned approach to care.
• Annual Care Plan: Filed annually tied to the date of appointment, updating the court on the incapacitated person’s current health, living situation, and the guardian’s interactions and interventions over the prior year.
• Rogers Review Hearing: If the incapacitated person is prescribed antipsychotic medication, then there is an annual proceeding to review the guardian’s authority to consent to the administration of any antipsychotic medication.

Conservator Reporting Requirements

• Inventory: Filed after the appointment of a conservator, documenting all assets under the conservator’s management.
• Annual Account: Filed annually, documenting all receipts, disbursements, and asset changes over the prior year. The conservator also needs to request that the Account be allowed by the Probate Court.

Failure to meet these reporting obligations is more than a technical violation. Courts may respond with removal of the fiduciary, surcharge for financial losses, or referral for further proceedings. Fiduciaries and their counsel must treat these deadlines as mandatory.