Code of Massachusetts Regulations
104 CMR - DEPARTMENT OF MENTAL HEALTH
Title 104 CMR 28.00 - Licensing and Operational Standards for Community Services
Subpart A - STANDARDS FOR COMMUNITY SERVICES
Section 28.10 - Legal Capacity, Guardianship and Conservatorship

Universal Citation: 104 CMR 28.00 MA Code of Regs 28.10

Current through Register 1531, September 27, 2024

(1) No person shall be deemed to be incapacitated to manage his or her affairs, to contract, to hold a professional, occupational or vehicle operator's license, to make a will, to vote or to exercise any other civil or legal right solely by reason of enrollment in a service.

(2) All persons who are 18 years of age or older shall be presumed to have the legal capacity to conduct their personal and financial affairs, unless otherwise determined by a court of competent jurisdiction.

(3) In any assessment of capacity, a person's need for a guardian, conservator, or for other fiduciary, shall be based on the following considerations:

(a) Generally, a person shall be determined to be in need of guardianship, conservatorship, or other fiduciary services only if the person's capacity to make informed decisions concerning his or her life, property, or both is so limited that the person lacks the ability to meet essential requirements for physical health, safety or self-care. That a person may even routinely make what others consider to be poor decisions is not a proper basis for recommending guardianship, conservatorship or other fiduciary.

(b) Although the capacity of the person to make important decisions is the central benchmark for determining the person's need for guardianship, conservatorship or other fiduciary, the capabilities of the person's family and other persons with whom the individual is associated, particular strengths and weaknesses in the person's living circumstances, and the availability and utility of non judicial alternatives to guardianships such as trusts, representative payees, citizen advocacy programs, or community support services should also be considered and may increase or lessen the degree of the person's need; and

(c) The assessment should identify the specific areas of the person's functioning which are the basis of the recommendation relative to the need for a guardian, conservator or other fiduciary, such as inability to respond appropriately to health problems or consent to medical care, or inability to manage savings or routine expenses.

(4) If at any time a person is determined to lack capacity to make informed decisions with regard to his or her health, welfare, or property and if non judicial less restrictive alternatives such as trusts, representative payees, co signatory bank accounts and citizen advocates are inadequate, the person's nearest living relatives shall be notified, if appropriate, and the provider shall assist in the appointment of a conservator or guardian or other fiduciary, as appropriate.

(5) If at any time a person is determined to have regained the capacity to make informed decisions with regard to his or her health, welfare, or property, the provider shall assist in the removal of the person's guardian, conservator or other fiduciary, as applicable.

(6) The provider shall implement procedures to ensure that suspected improprieties of a guardian, conservator, trustee, representative payee or other fiduciary are reported to the Department and other appropriate authorities.

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