Hemenway & Barnes probate litigator, Donna A. Mizrahi, was quoted in a Massachusetts Lawyers Weekly article “Court-appointed conservator granted immunity” on the Supreme Judicial Court’s recent decision in Hornibrook v. Richard, et al. In the decision, the SJC found that a conservator is entitled to absolute immunity and cannot be held personally liable for those acts that have been approved by the Probate & Family Court.
Donna told MLW reporter, Erick Berkman, that while the decision did not discuss whether this immunity extends to a guardian, presumably it would so guardians should likewise seek court approval before acting on behalf of incapacitated persons. Mizrahi further noted that “[t]he decision additionally illustrates issues that can arise when different individuals serve as conservator and guardian” because “[w]hile guardians and conservators have different realms of authority … in practice, their authority can overlap somewhat.” “When the guardian and conservator are not one and the same person, it is important that they communicate with each other and ensure that the division of authority is clearly demarcated and understood by all involved,” Mizrahi said.
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