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INSTRUCTIONS TO CLINICIANS FOR COMPLETING THE MASSACHUSETTS
MEDICAL CERTIFICATE FOR GUARDIANSHIP OR CONSERVATORSHIP
Do I tell the individual that I am evaluating capacity and completing the medical
certificate?
Prior to completing an evaluation of capacity for the purposes of guardianship or conservatorship,
the individual must be informed of the purpose of the evaluation and the potential that the
evaluation will be used to form a legal finding of incapacity, removing the individual’s rights to
make personal or financial decisions in whole or part. The process of disclosure and the patient’s
understanding of it, should be documented in the clinical record. If you did not provide this
disclosure to the individual for good clinical reason (e.g., the person is in a coma), check no and
explain the reason.
Under the law, the patient must be personally examined within 30 days of the hearing.
Note that under the Health Insurance Portability and Accountability Act protected information
can be provided to courts for guardianship proceedings. HIPAA protects the privacy of health
information, but it cannot be used as a barrier to providing required information to a court.
The legal standard for guardianship and conservatorship has three main parts.
What is the legal standard?
Form
Section
1
Component
A diagnosis
2
3
A decision making problem
Functional problem
Guardianship standard
Conservatorship standard
“clinically diagnosed condition”
“an inability to receive and evaluate
information or make or communicate
decisions”
“lacks the ability to meet essential
requirements for physical health, safety,
or selfcare”
“clinically diagnosed
condition”
“an inability to receive and
evaluate information or
make or communicate
decisions”
“unable to manage
property or business affairs
effectively and/or has
property that will be
wasted or dissipated unless
management is provided”
How do I complete each section?
Section 1: Clinically Diagnosed Condition
Provide the name and a brief history of the condition(s) that are causing the decisional and
functional problems. When did the problem start? What caused it? List the person’s
medications or attach a list. The court will accept an attached list.
For some individuals the cause of incapacity is a temporary one – a psychotic episode, a severe
depression, a recent stroke. For other individuals the cause of incapacity may be more permanent
but the functional level appears worse than it is because of factors such as poor hearing or the
recent death of a loved one. Describe these.
The judge needs to know how long the order for guardianship should remain in effect and when
the case should be reheard. The judge is not a clinician and does not know the usual prognosis
associated with various medical conditions. Using your best clinical judgment check whether the
condition may improve, worsen, or stay the same and if improvement is possible, when the
person might be so improved that the guardianship order should be reviewed by the court
Section 2: Decisional Impairment
The standard for guardianship emphasizes decisional impairment – namely how the clinically
diagnosed condition is resulting in an inability to “receive or evaluate information or make or
communicate decisions.” Several clinical factors may lead to decisional impairment. Some
individuals are unconscious or for other reasons are simply not alert enough to communicate a
decision. Other individuals have neurological conditions, such as dementia, causing problems in
memory, reasoning, judgment which impair decision making. While other individuals have
psychiatric or emotional conditions, such as schizophrenia, that may impair decision making.
Describe how these factors are affecting decision making abilities.
Section 3: Functional Impairment
3.1 Guardianship. The standard for guardianship states that the individual is unable “to meet
essential requirements for physical health, safety, or selfcare.” The court must strongly consider
if the guardianship order can be “limited” which means the court can reserve the person’s legal
rights in specific areas. Therefore, carefully describe the areas in which the person has retained
abilities (part A) and the areas in which the person has impairments (part B). Think about
specific aspects of ADL’s or IADL’s that the person can still do, such as:
Maintain adequate hygiene, including bathing, dressing, toileting, dental
Prepare meals and eat for adequate nutrition
Identify abuse or neglect and protect self from harm
Give/ Withhold medical consent
Choose and direct caregivers
Manage medications
Contact help if ill or in medical emergency
Choose/establish abode
Maintain reasonably safe and clean shelter
Be left alone without danger
Drive or use public transportation
Make and communicate choices about roommates
Initiate and follow a schedule of daily and leisure activities
Travel
Establish and maintain personal relationships with friends, relatives, coworkers
Determine his or her degree of participation in religious activities
Use telephone
3.2 Conservatorship . The standard for conservatorship states that the individual is unable
“unable to manage property or business affairs effectively” or that the person has “property that
will be wasted or dissipated unless management is provided.” Here too the court must strongly
consider if the conservatorship order can be “limited” which means the court can reserve the
person’s legal rights in specific areas. Therefore, carefully describe the areas in which the person
has retained abilities (part A) and the areas in which the person has impairments (part B). Think
about specific aspects of financial decision making the person can still do versus areas in which
the person needs protection, such as:
Protect and spend small amounts of cash
Manage and use checks
Give gifts and donations
Buy or sell real property
Deposit, withdraw, dispose, invest monetary assets
Establish and use credit
Pay, settle, prosecute, or contest any claim
Enter into a contract, financial commitment, or lease arrangement
Continue or participate in the operation of a business
Employ persons to advise or assist him/her
Resist exploitation, coercion, undue influence
Section 4: Values
A capacity finding is never merely about the facts of the individual’s decisional or functional
impairments, but how these interact with the person and his or her environment. This is
addressed in Section 4 and 5. Tell the court what you know about this person – specific values,
preferences, where the person wants to live, does the person want a guardian or conservator,
religious or cultural views. If these factors are largely unknown to you and the person cannot
communicate them to you know, let the court know that as well.
Section 5: Social and Risk Factors
Some individuals are closely attended to by family and friends who mitigate their risk. Other
individuals have few or no family or friends – or their family or friends have taken advantage of
their incapacity. Describe the social situation and the person’s risks, and whether the social
factors are increasing or decreasing risk. At times some may worry or even overreact to a
potential or theoretical risk, while at other times a significant risk (such as theft of a large sum of
money) has already occurred. So describe how severe the risk is and how likely it is.
Section 6: Recommendations for Level of Care or Supervision
The law for guardianship requires the clinician to provide recommendations for treatment. This
is addressed in Sections 6 and 7. Section 6 addresses the placement issues. If no placement is
being sought, check none, and skip to the next section.
Section 7: Recommendations for Treatment
Will any treatments be helpful to the patient? If so, check yes.
Section 8: Attendance at the Hearing
If it would be clinically harmful for the patient to attend the hearing, please describe why. The
individual has the right to attend the hearing. If accommodations would enable the individual to
attend the court hearing, please describe.
Section 9: Certifications
Complete as directed. The form does not need to be notarized.
