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I provide experienced legal guidance in family law, divorce and special education law. I represent parents and families throughout western Massachusetts.

What are the general laws for guardianship in Massachusetts?

Many family disputes and disagreements stem from worries about who will care for children if the parent dies or is incapacitated. These can be minor children or children who have special needs. The interests of the children are the top priority and, in many instances, guardianship is the best option for everyone involved. When considering guardianship, it is important to understand how Massachusetts law handles these complicated issues.

A guardian for a minor child may be appointed by a parent through a will or other legal appointment. This must be attested by a minimum of two witnesses. The parent has the right to revoke this appointment at any time. The parent also has the right to place limitations on the powers that the guardian will have. Once a petition is made to the court, the court will be able to confirm the appointment of a guardian if it is unlikely that the parent will be able to care for the minor child within two years or less. This appointment also terminates the rights of others to care for the children.

The appointment will go into effect when the parent dies, becomes incapacitated, or if there is a written opinion by a doctor that the parent cannot care for the minor child any longer. Once the appointment is effective, the guardian must do the following within 30 days: file a notice accepting the appointment along with a copy of the will or other nominating document with the relevant court; and petition the court for confirmation of the appointment if it was not previously confirmed. The appointment of a guardian cannot supersede the parental rights of either of the parents. If both have died or were declared incapacitated, the appointment made by the last parent who was alive or was found incapacitated will be given priority.

Parents who have a minor child or a child who has special needs will inevitably be concerned about that child's future if the parent is no longer there or capable of providing care. It is with that in mind that the law allows for guardianships. For those who are concerned about a guardianship and need assistance with family law, speaking to an experienced attorney can provide advice and guidance.

Source: malegislature.gov, "Section 5-202. [Parental or Guardian Appointment of Guardian for Minor.]," accessed on Jan. 4, 2016

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