Section Review

Massachusetts needs a public guardianship commission

Wynn A. Gerhard has been the managing attorney of the Elder Law Unit of Greater Boston Legal Services for the past 17 years. Her practice consists of elder law issues, health and income benefits, nursing home issues, guardianship issues and housing issues.
Unlike most states, Massachusetts does not have a public guardianship statute — a law designed to provide quality fiduciary services to legally incapacitated and indigent elders who have no family or other source of social support the so-called “un-befriended elderly.” In July 1996, Attorney General Scott Harshbarger published an issues paper, “Guardianship In Massachusetts: Where We Are and Where We Should be Headed,” a thoughtful compendium of recommendations relative to the many issues where Massachusetts lags far behind the rest of the nation in terms of needed and long overdue reforms of our guardianship laws and procedures. At page 17 of that report is the recommendation that Massachusetts, “[c]reate a public guardianship program to serve persons in the Commonwealth who are indigent and legally incapacitated.”

For the past 10 years, advocates in and out of the legislature have proposed legislation to establish such a public guardianship program. But so far this has been without success. Resources for the provision of guardianship services to such incapacitated elders are either scarce or simply nonexistent.

Currently, the bill designed to address these critical needs is Senate No. 1144, “An Act Establishing the Public Guardianship Commission,” is now pending before the Senate Ways and Means Committee. The bill was sponsored by Sen. Cynthia Creem, Sen. Richard Moore, Rep. David Linsky and Rep. Pat Jehlen, and assigned to the new Joint Committee on Mental Health and Substance Abuse, which is co-chaired by Sen. Steven Tolman and Rep. Ruth Balser. The bill was heard on June 6, 2005, and on Nov. 23, 2005, it was reported out favorably to the Senate Ways and Means Committee. The bill is supported by a wide range of providers and advocates for the elderly and disabled, including Massachusetts Association of Older Americans, Greater Boston Legal Services, The Center for Public Representation, The Massachusetts Down Syndrome Congress and Jewish Family Services.

The problem addressed by this bill is this: Many elderly and disabled people do not have the capacity to decide where to live, what medications or medical care they need or how otherwise to spend their money. It may become necessary for a Probate Court to appoint a guardian or conservator to make these decisions. Unfortunately, many of these incompetent people have no significant assets and no family or friends to act as guardian or conservator. Volunteers are hard to find to take on this responsibility. When no one is found, decisions are not made, monies are not spent and, in some instances, services or benefits are not provided, often with the result of a health or social crisis in which the incompetent person must be institutionalized, to the detriment of both the individual and the state budget.

This bill establishes an unpaid, autonomous Public Guardianship Commission under the Supreme Judicial Court. The cmmission (or a fiduciary nonprofit organization with which it contracts) may be appointed as guardian, guardian ad litem, conservator, trustee, representative payee or monitor for an indigent, incompetent person for whom there is no one other than the commission or its contracted agencies to serve in this capacity. The bill does not change the law as to when a fiduciary may be appointed, but provides an organization that is available to act in this capacity when necessary. The bill would go into effect as a pilot project serving those in need only in Suffolk County. A year later, while continuing to serve Suffolk residents, the Public Guardianship Commission would begin serving people in the four counties of western Massachusetts. Six months later, it is proposed to expand to residents in the rest of the commonwealth.

The language of the bill makes it clear that the unpaid commission will encourage and support families and friends to serve as fiduciaries, with assistance from the commonwealth, if necessary; promote and support the provision of fiduciary services by local, nonprofit organizations to establish a decentralized delivery system; provide extra safeguards for the rights of wards and proposed wards; and ensure that every person served is provided with caring, high quality and individualized service at a reasonable cost. Prior to adopting a service delivery model, the commission must solicit and take into consideration the views of all interested persons.

The commission or its contracted agencies may be appointed as a fiduciary only when there is no less restrictive way of meeting the needs. All decisions of the fiduciary must reflect the individual character, desires and circumstances of the incompetent person; and the incompetent person must be allowed to make his or her own decisions where possible. The fiduciary may not be appointed unless it first determines that it is able to provide high quality services. The nine-member commission includes an elderly person, disabled person, elderly advocate, disability advocate and an elderly or human services provider.

Appropriations of the General Court would pay for the commission and the services it provides. Consequently, three months after the governor signs the bill into law there would need to be money for the commission staff and office expenses. By six months after signing, there would need to be money to pay for contracted guardianship services. The money needed for services would increase over time, as the commission’s contracting expands and as each delegate agency takes on more cases. If the bill passes for FY 2007, the approximate cost for that first year is $254,717, rising to approximately $3,459,937 in FY 2010 and thereafter.

It is important to note that this is not entitlement legislation. The Public Guardianship Commission and its delegates are given power (primarily as a quality control measure) to refuse court appointment if they lack “the capacity to provide high-quality fiduciary services and . . . otherwise carry out the responsibilities under such appointment; and any appointment in violation of this provision shall be void.”

A copy of the bill (S. 1144) can be downloaded from the State House Web site, www.mass.gov/legis.

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