Guardianship Tips and Process

A Parent’s Journey:     

Helpful Tips for Completing Guardianship

For Your Disabled Child In Massachusetts

Linda McInnis

February 2020

 As a parent of a disabled child turning 18, I navigated the world of guardianship and survived.  While our journey took some unexpected turns, we are pleased with the outcome.  Overall the process took about 4 months from start to finish.  Since my situation was fairly straight-forward– nobody was going to contest my child’s guardianship– we decided to do most of the work ourselves.

With most things you do once and probably never again, I looked online to find out what to expect.  Most of the information I found was technical or written by lawyers.  I learned that there are many nuances.  At that time I decided to share what I had wished we knew before starting, summarized in this article.  I hope by sharing my story this information will help you navigate your journey, or help to interview an attorney about your own circumstances.

  1. Decide to hire a lawyer or do it yourself.

If there is no one contesting the guardianship, mental health issues (psychotropic medications require additional paperwork) or representative payee/ financial concerns, then you can save a great deal of money by completing a straightforward case yourself.  We decided to give it a try and do it ourselves and it worked out well.

If you do not have the funds to hire a lawyer nor the time and patience to do it yourself, reach out to your local legal aide office.  They may have a law student who can assist you with the process.  In addition, the MA courts website lists guardianship clinics that are regularly scheduled at Courthouses across the state to help explain the process.

Tip 1: Although you don’t require legal knowledge to complete the process you need to have good organizational skills, time management skills, patience and the ability to travel to the courthouse a minimum of two to three times. 

  1. Go online and download Court forms. Determine which clinical reports are required based on your child’s situation and schedule appointments with the necessary licensed clinical professionals. 

The Guardianship forms are found on the Commonwealth of Massachusetts website, under Probate and Family Courts (https://www.mass.gov/lists/probate-family-court-forms-for-guardianship-and-conservatorship).  The first forms you should focus on are the clinical team reports and petition for guardianship forms.

The clinical team report forms must be signed by a licensed psychologist, licensed social worker and a licensed physician.  To obtain these signatures, you will need to schedule times to meet with them in person.

Pay close attention to the timelines indicated on the reports.  Depending on your child’s situation, licensed professional signatures will only be good for so long before you would need to get new signatures.

Tip 2: On the guardianship form make sure to check the box that says allow the guardian to admit incapacitated person to a nursing home or healthcare facility.  This will allow the person to utilize respite at places such as New England Pediatric or Seven Hills.

 Tip 3:  This is the time to appoint secondary guardians.  If there are siblings, relatives or friends that will eventually become a guardian then include them as secondary guardians.  If you do so now you will avoid having to complete the entire process over from the start.  Secondary guardians must attend the hearing and fill out the paperwork for background checks while there.  Although some parents said they didn’t need to have the secondary guardians attend, our clerk stated that if they weren’t there they couldn’t become guardians.

  1. Schedule Doctor Appointments to Obtain Clinical Evaluation Reports and Signatures.

For a court to grant a guardianship, the judge will need opinions from a doctor, social worker and/or a psychiatrist.  The process to schedule and complete clinical evaluations and reports took us four months.  If you are short on time, The Competency Consulting group is a private pay licensed social works, Ed.D team that will charge you a fee to go where you are, evaluate the child, write and sign the needed reports.  The website is https://www.guardianshipevaluations.com/.  You may also find free resources.  Sometimes your school district has individuals who can sign off on the reports.  Confirm when you are talking to the school about evaluations/report signatures that you are inquiring about guardianship and not the evaluations for the DDS 688.  On the advice of another parent, I had the evaluations and signed report completed by Franciscans Hospital.

  1. File Your Guardianship Motion with the Court.

Congrats, you completed your clinical team reports and signatures.  Now you can file your motion.  This likely will be your first visit to the county courthouse.  The packet you will submit should include your Guardianship Forms, Clinical Evaluations and Clinical Team Reports (depending on your child’s situation).  Make copies of everything!

Go to the county courthouse, Clerk’s office and ask directions to file a Guardianship petition.  At the courthouse, hand the clerk your original forms and ask they look them over for completeness.  Ask for a receipt, which may likely be them just stamping your copy with a date.  Ask the clerk about the next step, which if you’re on the right track should be about completing Process Service and Scheduling a Hearing date.

Tip 4:  Make sure to keep copies of all your documentation.  They can easily get lost once submitted.

 Tip 5:  Before you file your Guardianship Motion, read Step 5 below and line up your Process Service Signatures.   

  1. Complete Service of Process.

We wanted to get this done right away, so we lined up this step before completing Step 4 above.  Overall, what’s important at this stage is that once you submit the Guardianship forms with the Court, you have only 14 days to complete the Certificate of Service signatures, and this requires original signatures from DDS and interested parties.

A service of process informs all interested parties about your intent for guardianship.  If your child is 18 or older and lives in Massachusetts, then MA DDS is an interested party and you will need to get the Department’s signature.  Our request was not controversial at all, so we didn’t have to worry about someone disputing our motion.  If you expect pushback from somebody, you should reconsider doing this journey yourself.

Our first step was to schedule time with our local DDS office.  Once scheduled, it only took about 15 minutes to complete the DDS signatures and Process Service.  Bring a copy of your paperwork to DDS, ask them to sign acknowledging receipt, make a copy and leave with the original signature.

Next, we served our secondary guardians and nominated a disinterested person to sign on behalf of our disabled child.  A disinterested party is someone who has no vested interest in the proceedings.  It can be a relative or family friend.  You can hire a constable to do this work, but we decided to do it ourselves and completed process service by hand delivery.  It took a few days, and advance planning.  You can also do it by mail but will need to pay for certified mail receipts.

Tip 6:  If you prefer not to complete the process server, you can hire a constable.  The constable will charge approximately $300 to complete the process server requirements (2019}.

  1. Return the Process Service Signatures to the Court

Congrats, you got all the original signatures.  Your next step is to deliver the Process Service Certificate to the court.  When you hand them to the Clerk, ask them to review for completeness and request a receipt.  You should also request a hearing date.  Most likely the hearing date will be offered 1 time per week and will be set for a few weeks in advance.  Write down the hearing date the Clerk gives you.  The Court will not send you a letter in the mail to confirm the date.  Ask the Clerk for a Docket Number and instructions for how to track your motion using the Court’s online system.

  1. Attend the hearing.

It’s time to see the Judge!  The day of the hearing will likely be your second or third and final trip to the courthouse.  At the courthouse, before the hearing, the guardian/s will be directed to fill out a criminal background check form.  There may be other paperwork requests too, so bring your file of copies with you.

The hearing can take as little as 10 minutes, depending on the number of motions being heard.  It may take longer if you have a lawyer and need to discuss financial or other matters.

Be sure that the person who needs a guardian and the guardian(s) are present at the hearing.  Although there is a section on the application that asks if, and why, the child cannot attend the hearing, the judge seeing the child may hasten their decision.

After the clerk calls your name and docket number, the judge swears in the guardians, examines the paperwork, and determines guardianship.  After the Judge grants your motion, the clerk will prepare a Guardianship Order that very day, so make sure you know where to wait.  If all goes well, you should leave Court today with a signed Guardianship Order.

Tip 7: In advance of your hearing go to MassCourts.gov and confirm your docket number and courtroom.  Write your docket number on the file you bring to the courthouse. The docket number is how the court staff can best help you answer questions.    

The above information was based on my experience with the process.  It may differ as every situation is unique.  I hope this information will assist you in process and wish you luck.

Author Notes

Linda McInnis lives in Middlesex County, Massachusetts and is Mom to triplets Kate, Nick and James, 18 years old. Jlmcinn4@comcast.net

 

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