This issue’s feature continues the discussion of guardianship models introduced in Vol. 2 (March 2026) of Beyond Guardianship. The focus in our March issue was on the “social work” model. This month’s discussion focuses on less-intensive guardianships, in which the guardian’s contact and involvement in the affairs of the individual can be significantly reduced, as compared to the social work model. We speak of “types” of guardianship for purposes of this kind of analysis, but it may be more accurate to think in terms of a spectrum of norms. The social-work model is at one end of the spectrum. At the other end is the “decisions-only” model.
What we mean by “decisions-only” guardianship1 is, at the extreme, an appointment in which the guardian does not get to know the individual well enough to have a independent perspective upon which to base decisions for the individual. The guardian defers to caregiving recommendations of others who are viewed as responsible for the individual’s well-being, such as medical, residential or case management staff.
The path to this kind of guardianship is well-worn in appointments for individuals who are indigent and socially isolated—often referred to as “unbefriended,” or “unrepresented and at risk.” The petitioner usually will be an institution, either public or private, that is providing medical care, or that intends to transact some business or legal process that requires a representative to give consent. No family member or friend is known, or is available, to petition.
For the same reason, there also is no close relative or friend to accept the appointment. The court hearing the petition has no option except to find a professional who will serve pro bono, or to track down a willing but historically uninvolved family member, who often has no experience as guardian for an adult. As discussed in more detail below, the appointment is essentially volunteer.
A regular archetype of this pattern is the outcome for an individual confined to a nursing home, whose guardian rarely or never visits. Facilities complain routinely about guardians who do not return calls, or cannot be located. It is expected that the guardian will respond when consent is needed for a medical recommendation or personal decision, but that may not always happen. Not infrequently, communication stops because the guardian was appointed only under temporary proceedings, which expired after 90 days, and the appointment never became permanent.
This image of decisions-only guardianship should be qualified in two ways. First, if we accept the initial premise, that there is a spectrum of models of guardianship along an axis of care coordination and other aspects of the social-work model, from little or none of those elements to a role that is largely defined by them, we also are inferring that there are models that inhabit a middle ground. In practical terms, this idea acknowledges that pro bono professionals or remote family members who may start out as passive and/or very uninvolved guardians may become more personally or professionally engaged, and find themselves in a supportive relationship with the individual. If that person resides in a nursing home, this kind of change might not involve a lot of care coordination, because the facility would still be responsible for most of that.
If this taxonomy were a hard science, the middle range of the spectrum could be thought as “decisions-plus” guardianship. There may be a significant cohort of this kind; we just don’t know. Volunteers sometimes find meaning in tending to the life-care needs of a stranger, even though (or maybe because) there is little or no compensation. It is risky, from a policy perspective, to assume that pro bono guardianship is self-motivating in the direction of care-coordination. But the anecdotal evidence is abundant that a true spectrum of roles exists between disengaged and fully engaged guardianship.
The second qualification of the decisions-only model is that, like any other guardianship, it is subject to a statutory mandate to maximize autonomy and self-determination for the incapacitated individual. Under the Massachusetts Uniform Probate Code (MUPC), which became effective in 2009:
A guardian shall exercise authority only as necessitated by the incapacitated person’s mental and adaptive limitations, and, to the extent possible, shall encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, to the extent known, shall consider the expressed desires and personal values of the incapacitated person when making decisions, and shall otherwise act in the incapacitated person’s best interest and exercise reasonable care, diligence, and prudence.
G.L. c. 190B, §5-309(a) (2026).
This language clearly imposes ethical and fiduciary duties on guardians. But it is surprisingly open to interpretation. A hands-off approach to guardianship might be justified on grounds that a supportive relationship can lead to a loss of the individual’s sense of independence, and that some persons would make more decisions on their own if there were not a dedicated guardian trying to improve their life. To a different guardian, the same duties might be understood to require him or her to invest enough time and patience to learn how the individual experiences life, which would facilitate much more flexibility to include his or her values and preferences in each decision. The first interpretation fits comfortably with a decisions-only model of guardianship; the second does not.
With these qualifications in mind, we turn to consideration of how prevalent a decisions-only (or “decisions-plus”) model of guardianship may be in Massachusetts.
How Widespread is the Decisions-Only Model?
- Social isolation of the individual for whom the appointment is made can be inferred from whether the petitioner was, or was not, a family member. Approximately 13,000 petitioners were family members of the individual, which would leave 16,000 filings by third-party institutions, including nursing homes, hospitals, state agencies and a handful of “unknowns.”
- The estimate of socially isolated individuals in turn suggests very roughly the number of appointments for which a professional appointee will have to be found.
- And since we know that there are almost no public sources of payment for professional guardians, the number of appointments for which a professional will have to be found can be offered as a proxy for the number of guardianships that operate with a decisions-only model in Massachusetts. If this is a reasonable way to approximate the number, there are as many as 16,000 appointments in Massachusetts that operate in a decisions-only manner.
Even a very speculative number as high as 16,000 suggests that decisions-only guardianship is very widespread, if not dominant, in Massachusetts. But even if this is a sound estimate, we cannot claim to know whether how many “decisions-only” guardianships are closer to a “decisions-plus” model. Do the practices of pro bono professionals or remote family members cluster at the extreme edge of the spectrum, where the guardian is passive and/or very uninvolved with the case? Or is there a significant number of volunteer appointments that evolve into a personally or professionally engaged and supportive relationship, without necessarily developing a significant care-coordinating function.
Research is needed that will begin to answer some of these questions, especially those that gather around the issue of finding ways to pay professional guardians who accept appointments for unrepresented, at-risk individuals. In the meantime, the limited statistics that we do have are striking enough that we should examine why the relatively disengaged, decisions-only model seems so prevalent.
Reasons for Decisions-Only Guardianship
The apparent prevalence of decisions-only guardianship is a consequence of both the way the law is written, and an array of incentives that favor such practice. These are magnified by disincentives—mainly the costs—that burden care coordination as a model for guardianship.
Despite the lofty language of the MUPC, it describes the duties of a guardian essentially as qualifications of the power to decide. The social-work model of guardianship has introduced supportive relationships as a way to approach guardianship. The statute has none of this. According to the MUPC, guardianship is still just about decisions, even if guardians can and do act through relationships, and not just by deciding things.
The limited focus of the statute may be simply an artifact of history. The bare authority of those in power to decide for the alleged incompetent has been the core meaning of guardianship in European culture for 2,500 years. The principle was established in ancient societies to protect family property and social standing when the patriarch became incapacitated. Traditions die slowly, and even after the long road of discovery that has reimagined guardianship as a person-centered, values-driven, supportive relationship, many parts of society cannot envision guardianship as more than a form of social control.
On a more practical level, we have already considered one of the major incentives for decisions-only guardianship, namely, that most of the petitions for the indigent are filed by third-parties to address an immediate, short-term transaction or crisis. The immediate concern can be anything—protecting income, qualifying the person for MassHealth, or overseeing a transition from a hospital to a nursing home. The third-party will pay for guardianship filing, but not the guardian. If the individual is indigent, the guardian will not be paid at a professional rate (details are given, below), either during or after the crisis.
State social services agencies can be another driver of decisions-only guardianship. To be clear, the Protective Services program in the Executive Office of Age and Independence (“AGE”) is not one of these influences. AGE in fact is the only state agency that requires its guardians to invest the time and attention that typify guardianship at the social-work end of the spectrum.
Other agencies have explicit policies to enforce a decisions-only role for guardians for their members. This policy is implemented in part through the conditions under which agencies pay guardians for their services. Unless exceptional needs are shown, the large state agencies will approve no more than two hours per month at $50 per hour, or $1,200 per year. This compares to reimbursement rates of over $10,000 per year that AGE pays for each appointment that is accepted from the Protective Services program.
Incentives for a decisions-only approach to guardianship are magnified by disincentives for guardians to provide more intensive levels of service. We have alluded to the absence of reasonable compensation, other than for guardians paid by the Protective Services program, for guardians to offer the social-work model of service. The details of these disincentives are grim.
Two overlapping programs in Massachusetts offer compensation for serving as guardian to an indigent individual: (1) Pursuant to a guardian’s obligations under Rogers v. Comm’r, etc., 390 Mass. 489 (1983), the court will pay up to $1,200 per year (the same as state agencies), for a professional guardian to obtain or renew authority to consent to antipsychotic medication. (2) If the individual is receiving Medicaid nursing home benefits, and the guardian is required in order to provide consent for medical care (including Rogers authority), Rudow v. Comm’r, etc., 429 Mass. 218) (1999) provides an alternative payment source. MassHealth must allow a deduction from the person’s income for fees that are paid to the guardian for those specific services. Compensation is limited to $50 per hour, and there is a two-hour monthly cap on compensable time; additional one-time payments of $350-$750 are allowed for appointment procedures and Medicaid applications or recertification. (Rates are published at 130 CMR 520.026 (E)(3)(d).)
Compensation under these programs is 60-80% below reasonable professional rates that qualified lawyers and Social Workers can earn for work other than guardianship. Adding to the insufficiency, guardians cannot collect from both sources for the same individual.
The result of these limitations is that a professional guardian may feel constrained to offer a decisions-only, or “decisions-plus,” type of service to the individual. If the guardian maintains a typical practice as a lawyer, therapist or private case manager, any time in excess of five or six hours per year—half an hour per month—is given pro bono.
Living With a Decisions-Only Guardianship System
For better or for worse, decisions-only guardianship appears to be the default model for services provided to unrepresented, at-risk individuals in Massachusetts. It is a volunteer/pro bono system that operates on good will. Outcomes in each case depend on the individual guardian, how committed they feel to the work, how much pro bono time they can afford, how much access they have to the individual, travel time for visits, and other very pragmatic considerations. Most individuals probably are helped by the initial appointment. Decisions are made that keep the individual housed, treated or safe. And if the guardian goes above and beyond the expectations of an unreimbursed appointment, as many do, the individual will continue to have more and better advocacy than they would have had without a guardian. The concern is about cases where the guardian does not invest enough in the relationship to provide meaningful support.
Another factor that affects all guardianships, whatever model they adopt, is the growing influence of person-centered principles and standards. Person-centered practice requires the guardian to respect the values, preferences and concerns of the individual, and to strive to let the individual make his or her own decisions, with support from the guardian. Even if the guardian rarely sees the individual, simply asking those who interact daily with them to seek their input before recommending a decision will make a difference in how the person is treated. There is nothing to stop the guardian from advocating for as much autonomy as the individual safely can exercise, regardless of how well he or she knows the person, or how invested the guardian is in a supportive relationship.
Support is available to guardians who want to be more involved in their fiduciary appointments. The Center for Guardianship Excellence offers training, professional support groups and a growing number of published articles that help guardians to understand the relationship better and to provide better outcomes. The National Guardianship Association publishes an extensive collection of materials, including practice standards that apply to all guardians. The Probate Section of the Massachusetts Bar Association holds an annual conference that includes excellent programming about guardianship. The Massachusetts Guardianship Association also has an annual conference, and online courses are available from the National Association of Social Workers.
Notwithstanding the general trends toward person-centered practices, the concern about allowing decisions-only models to be the default role for guardianship is that the outcome in each case depends so heavily upon the experience, ability and character of the specific guardian. A volunteer/pro bono system does not provide incentives to encourage all guardians to work toward supportive relationships with the individuals they serve, and the costs of doing more than the minimum literally come out of the pocket of the guardian. These concerns are much on the minds of many policy-makers in the Legislative and Judicial branches of Massachusetts government, and will continue to be raised by the Institute in Beyond Guardianship.
1 We use the term “guardian” in this article to include both guardians and conservators, unless the context requires otherwise.
2 OAGCO was created as a result of the Elder Justice Innovation Grant that was awarded to Massachusetts in 2021 by the federal Administration for Community Living.
3 It should be noted that conservatorships are not included in this approximation, because the assumption of indigency may not be reasonable for individuals whose income or assets justify the appointment of a conservator. At minimum, the factors that support conservatorship are too dissimilar from guardianship to support mixing both kinds of appointments in the rationale for interpolating the OAGCO data as a basis for estimating the scope of decisions-only fiduciary roles.