Caregiver, guardian and adoptive parent are terms in the lexicon describing adults who oversee the welfare of minor children. Each status, however, imparts different levels of responsibility for the minor’s well-being and varying degrees of court involvement. The principal focus of this article will be on the distinction between a guardianship and adoption and the procedures involved in becoming a guardian or adoptive parent.

A caregiver, as governed by Massachusetts General Laws Chapter 201F, is an adult with whom a minor resides who is not the minor’s parent. Usually a relative or trusted friend, the caregiver is authorized to make medical and educational decisions on the minor’s behalf without first consulting the parent.

A caregiver’s authorization affidavit, executed before two witnesses and a notary, is valid for up to two years and need not be filed in court. Naming a caregiver is a fairly uncomplicated process that enables the parent to retain custody of the minor and in no way diminishes the parent’s rights to make decisions in the child’s best interests.

Where a parent is inaccessible or incapable of caring for a minor child, courts may appoint a guardian to make decisions for the minor, known as a ward. Under General Laws Chapter 201, a court may name a guardian custodian of a minor, even if a living parent does not consent, if the court deems the parent “unfit” to retain custody.  In contrast to a caregiver, the guardian, acting in the minor’s best interests, is empowered to make decisions about the minor’s education, health, care, support and welfare—irrespective of the parent’s wishes—until the minor turns 18. Regarding any property the minor may have, a court-appointed conservator, rather than the guardian, is responsible for managing or controlling the property.

In a 2014 decision, the Supreme Judicial Court of Massachusetts noted that a guardianship is “neither the equivalent of nor coextensive with parenthood, whether the latter arises by virtue of birth or adoption.” Whereas an adoptive parent supplants a biological parent, the SJC said, guardianships are constrained by third-party limitations and do not abolish the parent-child relationship, nor should the “same presumption of validity be accorded” a guardian’s judgment as a parent’s, despite their sharing certain rights arising from their custodial obligations.

ENTERING THE GUARDIAN’S GALAXY

A court petition to appoint a guardian may be brought by any adult or minor concerned about a minor’s welfare. A guardian selected by a minor age 14 or older must be approved by the court unless the court deems doing so would not be in the minor’s best interest. Applying that same standard, a court will not bestow guardian status to an individual facing pending battery charges that caused severe injury to a minor or to a person under investigation for child neglect.

A parent may voluntarily appoint a guardian for his or her minor child in a writing signed and notarized before two witnesses, and the named guardian must accept the appointment in writing. The guardianship then takes effect. Within 30 days of the appointment, the guardian must go to court—generally the Probate Court in the county where the minor resides, unless a Juvenile Court or District Court proceeding involving the minor already is in progress—and file the following documents:

  • Copy of the written appointment executed by the parent(s) or previous guardian;
  • Notice of acceptance of appointment by the guardian; and
  • Petition for Appointment of Guardian of Minor.

 

Objection to a court appointment of a guardian may be made in writing by a:

  • Non-consenting parent whose parental rights have not been terminated;
  • Minor age 14 or above; or
  • Person other than a parent with whom the minor resided or who has had custody of the minor during the previous 60 days.

 

Once appointed, the guardian provides the minor with a place to live, makes routine daily decisions regarding the minor’s well-being including medical and educational needs, uses the minor’s money to support the minor and save for the minor’s future, and even whether the biological parents can visit the minor, unless the court has already ruled on that issue. A guardian may receive payments due for the care and support of the minor and doesn’t have to use his or her personal funds to pay for the minor’s needs. The guardian, however, must seek court permission before he or she can seek to admit a minor to a mental health facility, consent to extraordinary medical procedures for the minor, administer antipsychotic medications to the minor or seek to abolish the guardianship or resign as guardian.

ADOPTION

A child is eligible for adoption if both birth parents voluntarily sign adoption surrenders or if a court has been petitioned by the Commonwealth’s Department of Children and Families (“DCF”) to terminate the parents’ right to consent to adoption. A child age 12 or older must consent to the adoption. By statute, an adoption decree for a child under age 14 enters only if the petitioner is a blood relative or step-parent of the child or has been nominated in a deceased birth parent’s will as guardian or adoptive parent, or if the child has been placed with the petitioner by DEF or the petition has the agency’s written approval.

Unlike a guardianship that may be terminated, an adoptive parent permanently assumes the obligations and rights of the child’s parents. Indeed, adoption decrees in Massachusetts by statute include the language: “This adoption is final and irrevocable.” By statute, a court acting in the child’s best interest, may allow an adoption without parental consent based on finding a parent unfit because of factors such as:

  • Child abandonment;
  • Physical, emotional or sexual abuse of the child;
  • Parental neglect or felonious assault of a child.

 

In a 2019 case, the Massachusetts Appeals Court ruled that a judge, beyond simply evaluating a proposed adoption plan, must “perform a careful evaluation of the suitability of the plan and must meaningfully…evaluate what is proposed to be done for the child.”

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Resources

M.G.L c. 201F

M.G.L c. 210

In re Wendell (Mass. App. 2019)

Care & Protection of Jamison, 467 Mass. 269, 4 N.E.3d 889 (2014)

Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 328 N.E.2d 854 (1975)