(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.
