Legal Competency, Guardianship, and Conservatorship

(1) All Adults Presumed Competent Absent Court Determination to Contrary. An individual who has reached 18 years of age shall be presumed to be competent to manage his or her affairs, including to contract, to hold a professional, occupational, or vehicle operator's license; to make a will, or to vote and no individual shall be presumed incompetent solely by reason of receiving services or supports from any provider, or services or support operated, certified, licensed or contracted for by the Department, unless otherwise determined by a court in a guardianship or conservatorship proceeding. (2) Safeguarding the Rights of Individuals to Make Financial and Health Care Decisions. (a) Competent Individual. 1. Health Care Proxy. Every competent adult shall have the right to appoint a health care agent by executing a health care proxy in accordance with M.G.L. c. 201D. The standard to show competence to name a health care agent, includes: a. individual is a competent adult 18 years of age or older; b. of sound mind; and c. under no constraint or duress. 2. Power of Attorney. Every competent adult shall have the right to appoint a durable power of attorney in accordance with M.G.L. c. 190B, § 5-501. A durable power of attorney is a power of attorney by which a principal designates another his attorney effective upon the disability or incapacity of the principal. (b) Notification of Possible Need for Assistance with Decision-making; Guardianship. 1. Financial Affairs; Notification If Capacity Is in Doubt and Preference for Least Restrictive Response. If an individual's ISP team has reason to believe that he or she lacks capacity to make informed decisions with regard to financial affairs, the Department or the head of the provider shall notify the individual's nearest living relative(s) in writing, with an accompanying recommendation that steps to protect the individual's finances be taken. Such steps may include the appointment of a representative payee, co-signatory bank account, a shared or delegated money-management plan or the appointment of a conservator. The appointment of a conservator shall be recommended only if: a. the Department or head of the provider has reason to believe that alternatives such as a representative payee, co signatory bank account, or a shared or delegated money management plan, are inadequate to protect the individual from a substantial and unreasonable risk to his or her property; or b. the individual has cash or assets easily converted into cash in excess of $10,000. 2. Guardianship of the Person; Least Restrictive Form of Guardianship. If an individual's ISP team has reason to believe an individual lacks capacity to make informed decisions with regard to personal affairs, the Department or the head of the provider shall notify the individual's nearest living relative in writing, with an accompanying recommendation for supports necessary to assist the individual in decision-making. A guardian shall be recommended only if: a. the Department or head of the provider has reason to believe that the less restrictive alternatives or other supports are inadequate to protect the individual from unreasonable risk to his or her health and welfare; and b. the type of guardianship recommended shall be the narrowest and least restrictive necessary in order to protect the individual from unreasonable risk to his or her health and welfare. (3) Actions Taken Where Appropriate Nominee for Guardian Does Not Exist. Where the nearest living relative cannot be found, is incapable of, unsuited for, or not interested in making decisions on behalf of the individual, and the head of the provider has reason to believe that less restrictive alternatives are inadequate to protect the individual's health, welfare or property, or the individual has more than $10,000 in cash or assets easily converted to cash, then the Department and the provider shall devise procedures to recruit a conservator, or guardian, as appropriate. These procedures shall attempt to ensure that: (a) temporary guardians are available to meet emergency situations; (b) individuals requiring conservators or guardians are identified and the appropriate relatives contacted; (c) suspected improprieties of a trustee, conservator, guardian, representative payee, or other fiduciary are reported to the court, the Department, and other appropriate authorities; and (d) individuals are provided with an explanation of conservatorship and guardianship, and, if requested or needed, referred to appropriate legal assistance.