The goal of state law is to ensure a person who has suffered incapacitation and cannot make personal care or financial decisions has the right guardian or conservator. This is why Massachusetts law establishes a hierarchy of candidates who may serve as guardians.
Fortunately, state law is not complicated on this issue, as it describes a few persons whom state courts give special consideration when establishing a guardianship or conservatorship.
The state hierarchy of choices
First, the spouse of the incapacitated individual has priority as a guardian candidate. Depending on whether or not the person is in a married relationship, no spouse may be available. If so, the state will consider the parent of the incapacitated person.
In the event there are two persons of equal priority, the court shall look at who has the best capacity to serve. If no spouse or parent is available or capable of serving as guardian, the court has wide latitude to examine possible candidates and deem a person appropriate to oversee a ward.
Nominating a conservator or guardian
You do not have to leave it up to a court to select a guardian for a loved one. In fact, state law also gives priority to people who make a guardian choice through their estate documents. According to Section 5–301 of Massachusetts law, a person can use a will to nominate a guardian for a spouse or children. The testator may also revoke or change the candidate if necessary.
State law gives people the power to help their families. No one should feel that the government has the sole input in determining who should care for an incapacitated relative.
