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SJC-12390
GUARDIANSHIP OF D.C.
Norfolk. January 10, 2018. - May 11, 2018.
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
Guardian. Nursing Home. Moot Question. Probate Court, Guardian, Uniform practices. Practice, Civil, Appointment of guardian, Moot case, Report.
Petition for appointment of a guardian filed in the Norfolk Division of the Probate and Family Court Department on January 26, 2016.
The case was heard by George F. Phelan, J., and questions of law were reported by him to the Appeals Court.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Michael C. Boyne (Jessica L. Deratzian also present) for the hospital. Karen Owen Talley, Committee for Public Counsel Services, for D.C. Martin W. Healy, Thomas J. Carey, Jr., John J. Ford, Mark A. Leahy, Edward Notis-McConarty, Jerry Cohen, & Wynn A. Gerhard, for Martin W. Healy & others, amici curiae, submitted a brief. 2
GANTS, C.J. The issue presented in this case is whether a
Probate and Family Court judge has the legal authority to allow
a hospital's request to transfer a patient to a skilled nursing
facility where the judge did not find the patient to be an
"incapacitated person," as defined in G. L. c. 190B, § 5-101
(9), of the Massachusetts Uniform Probate Code (code), and
therefore did not appoint a guardian for the patient. We
conclude that a judge does not have this legal authority. Where
a hospital patient refuses to consent to be transferred to a
nursing facility, a judge may order the patient to be admitted
to a nursing facility under the code only where the judge finds
the patient to be an incapacitated person, and makes the other
findings necessary to appoint a guardian under G. L. c. 190B,
§ 5-306 (b), and then grants the guardian specific authority
under G. L. c. 190B, § 5-309 (g), to admit the incapacitated
person to a nursing facility after finding that such admission
is in the incapacitated person's best interest.1
Background. On January 4, 2016, seventy-nine year old D.C.
was admitted to a hospital in Cambridge after suffering a
fracture of her left hip. During the first month of her
1 We acknowledge the amicus brief and letter submitted by Martin W. Healy, Thomas J. Carey, Jr., John J. Ford, Mark A. Leahy, Edward Notis-McConarty, Jerry Cohen, Wynn A. Gerhard, the Massachusetts Chapter of the National Academy of Elder Law Attorneys, Massachusetts Guardianship Policy Institute, and Massachusetts Advocates for Nursing Home Reform. 3
hospitalization, D.C. also presented with acute renal failure,
pancreatitis, and cardiac issues, and she underwent both a
coronary bypass and a mechanical heart valve replacement. D.C.
refused to have hip surgery at the time and rejected all
medications, including anticoagulants necessitated by her
mechanical heart valve.
The hospital's initial verified petition for appointment of
a guardian for an incapacitated person and a motion for
appointment of a temporary guardian were filed on January 26,
2016. The hospital alleged that D.C. was mentally incapacitated
and unable to communicate; it also sought "specific [c]ourt
authorization" to admit her to a nursing facility and, because a
substitute judgment determination might be required, to "consent
or withhold consent for the entry of a [Do Not Resuscitate, Do
Not Intubate, and Comfort Measures Only] order." The judge
granted the petition for temporary guardianship on February 1,
2016, and D.C.'s attorney was appointed as her temporary
guardian.2 The temporary guardianship was extended on March 2
2 Temporary guardianships are in effect for ninety days (or longer "upon a finding of extraordinary circumstances") and may be extended thereafter for "good cause shown." See G. L. c. 190B, § 5-308 (a) (where permanent petition for guardianship is pending, but court finds that waiting for permanent order would "likely result in immediate and substantial harm to the health, safety [or] welfare" of alleged incapacitated person, court may appoint temporary guardian pursuant to motion for temporary guardianship). 4
after a hearing, but lapsed on June 6, after the judge declined
to extend the guardianship.
The hospital filed another motion for appointment of a
temporary guardianship in July, 2016, asserting that D.C. was an
incapacitated person in need of guardianship based on her
insistent refusal of medical care. The medical certificate
filed with the petition provided, among other things, that D.C.
"has consistently demonstrated the inability to utilize the
information given to her about her illness and [the hospital's]
proposed treatment options," that her decisions are "putting her
health and life in danger," and that she "lacks [the] capacity
to make medical decisions at this time."
On September 26, 2016, a different judge conducted a bench
trial at the hospital on the petition for guardianship. In a
written decision dated November 15, 2016, the judge concluded
that the hospital had failed to meet its burden of proving by a
preponderance of the evidence that D.C. "is an incapacitated
person within the meaning of G. L. c. 190B, § 5-101 (9) [and]
that she is incapable of making decisions about medical
treatment." He determined that, "although she may be demanding,
difficult, obstreperous and plainly refused to assist or
participate with various medical care personnel at [the]
hospital, [D.C.] has the capacity to discern her medical
condition and needs with respect to anticoagulant medications 5
and hip replacement surgery, and has made [an] informed decision
not to participate or engage with the [h]ospital personnel,
understanding that her refusal of the medication may be
seriously harmful or lead to her death, and further
understanding that she requires a hip replacement which cannot
proceed without her taking those medications." He therefore
dismissed the hospital's petition to appoint a guardian for D.C.
However, the judge allowed the hospital's request that D.C.
be transferred to a skilled nursing facility, finding that,
notwithstanding D.C.'s refusal to take medications, her current
medical condition "no longer requires an acute level of care and
her medical needs can be met at a skilled . . . nursing
facility."
In November, 2016, the hospital moved for clarification of
the court's judgment. During a hearing on the hospital's
motion, the judge reiterated his finding that the hospital had
failed to prove that D.C. was an incapacitated person and
declared that, having so found, he could not order any
guardianship, even a limited guardianship, "solely for the
purpose of admitting [D.C.] to a skilled nursing facility." He
also declined the hospital's request to issue an order regarding
the hospital's authority to effectuate D.C.'s transfer to a
skilled nursing facility, but he did not revoke his allowance of
the hospital's request that she be transferred. Instead, on his 6
own initiative, he reported three questions of law to the
Appeals Court:
1. Must a guardian based on a finding of mental incapacity first be appointed over respondent to authorize petitioner to then admit respondent to a nursing facility?
2. Does the Massachusetts Probate and Family Court have the authority to appoint a "limited guardian," over a person not proven to be mentally incapacitated, solely for the purpose of admitting the respondent to a nursing facility?
3. Does the Massachusetts Probate and Family Court have the authority to order a not mentally incapacitated hospital patient to be transferred to a nursing facility?
The hospital filed a notice of appeal from the judge's
dismissal of the guardianship petition, and moved to consolidate
that appeal with the reported matter. The Appeals Court allowed
the motion to consolidate, and we transferred the consolidated
case to this court on our own motion.
Before oral argument on the appeal, the hospital filed a
new petition for guardianship, which the judge allowed. On
November 8, 2017, the judge found D.C. to be an incapacitated
person, appointed a general guardian for her, and specifically
granted the guardian the authority to admit D.C. to a nursing
facility after finding that such admission was in D.C.'s best
interest.
Discussion. 1. Mootness. The judge's more recent
allowance of the hospital's guardianship petition renders moot
the appeal from the judge's dismissal of the earlier petition. 7
But an exception to the mootness doctrine exists "[w]here a case
is 'capable of repetition, yet evading review,'" which may
render dismissal on mootness grounds inappropriate. Seney v.
Morhy, 467 Mass. 58, 61 (2014), quoting Wolf v. Commissioner of
Pub. Welfare, 367 Mass. 293, 298 (1975). "In such
circumstances, we do not hesitate to reach the merits of cases
that no longer involve a live dispute so as to further the
public interest." Aime v. Commonwealth, 414 Mass. 667, 670
(1993). Here, we decline to reach the merits of the hospital's
appeal from the judge's dismissal of the earlier guardianship
petition inasmuch as it claims that the judge was clearly
erroneous in finding that D.C. was not an incapacitated person.
That finding, based on D.C.'s physical and mental condition at
the time of the earlier hearing, is unique to her, and those
specific factual circumstances are not "capable of repetition"
in this or other cases.
However, we shall address the matter reported by the judge,
which concerns the lawfulness of allowing a hospital to transfer
a patient involuntarily to a skilled nursing facility in the
absence of a guardianship. That particular issue is "capable of
repetition and, given the short time periods in which
guardianship matters are often decided and the fluidity of the
proceedings even after an appointment of a guardian . . . , it
is an issue that can easily evade appellate review in the 8
ordinary course." Guardianship of V.V., 470 Mass. 590, 591-592
(2015). We also note that the guardianship petitions in this
case were all filed after July 1, 2009, when the current
provisions of the code governing guardianship of incapacitated
persons went into effect. See G. L. c. 190B, art. V, §§ 5–301
to 5-313, inserted by St. 2008, c. 521, §§ 9, 44. Since 2009,
there has been little appellate jurisprudence interpreting these
code provisions, and therefore little opportunity for us to
provide further guidance that might advance "[u]niformity of
treatment of litigants and the development of a consistent body
of law" (citation omitted). Zullo v. Goguen, 423 Mass. 679, 682
(1996). Because guardianship is of significant public
importance, and because this case has been fully argued to us,
we find it appropriate to address the questions posed by the
judge. See Superintendent of Worcester State Hosp. v. Hagberg,
374 Mass. 271, 274 (1978). See also Guardianship of Erma, 459
Mass. 801, 804 (2011) (appeal of substituted judgment treatment
order expired and moot, but court "comment[s] briefly on an
issue . . . that has public importance, has been fully briefed
and argued, and may recur under the [code]").
2. Propriety of judge's reported questions. The judge
here declared that he was reporting three specific questions to
the Appeals Court pursuant to Mass. R. A. P. 5, as amended, 378
Mass. 930 (1979). That particular rule, however, does not 9
confer authority on judges to report matters; it simply directs
how reported matters are to proceed under the appellate rules
once they reach an appellate court. See Gray v. Commissioner of
Revenue, 422 Mass. 666, 667 (1996). The authority of trial
judges to report matters derives from other court rules and
statutes, and depends, in part, on the type of case and on which
department of the Trial Court is involved. See, e.g., Mass. R.
Civ. P. 64, as amended, 423 Mass. 1410 (1996); Mass. R. Dom.
Rel. P. 64; Dist./Mun. Cts. R. A.D.A. 5. See also G. L. c. 231,
§§ 108, 111.
The authority of a Probate and Family Court judge to report
matters in a guardianship case such as this derives from G. L.
c. 215, § 13. That statute permits a judge of the Probate and
Family Court to report in two types of situations: (1) where "a
case or matter is heard for final determination," the judge "may
reserve and report the evidence and all questions of law therein
for consideration of the appeals court, and thereupon like
proceedings shall be had as upon appeal"; and (2) if after
making an interlocutory ruling, the judge "is of opinion that it
so affects the merits of the controversy that the matter ought,
before further proceedings [in the trial court], to be
determined by the appeals court," the judge may report his or
her interlocutory ruling for immediate appellate review. See
G. L. c. 215, § 13. The first path places an undecided case 10
before the appellate court and puts the appellate court in a
position to enter, or order the entry of, the final judgment in
the first instance; the second path places before the appellate
court the issue of the correctness of a significant
interlocutory ruling made by a Probate and Family Court judge.
See Dorfman v. Allen, 386 Mass. 136, 138 (1982); Paquette v.
Koscotas, 12 Mass. App. Ct. 52, 54-55 (1981).
The judge's report in this case does not appear to fit into
either category of reports permitted by G. L. c. 215, § 13. See
Matter of Jones, 379 Mass. 826, 828 n. 2 (1980). Nevertheless,
as we occasionally do, we address the reported questions. See,
e.g., Gray, 422 Mass. at 668; Dorfman, supra at 138. We do so
because the questions raised by the report are important and of
considerable public interest, and because we anticipate that our
discussion of the issues will provide guidance to judges and
attorneys in the future.
3. Legal authority under the code to admit a person
involuntarily to a nursing facility. The adoption of the code
in July, 2009, resulted in a substantial revision to the State's
statutory guardianship law. See G. L. c. 190B, art. V, §§ 5–301
to 5-313, inserted by St. 2008, c. 521, §§ 9, 44. As compared
with the previous statutory scheme, the "additional protections"
offered under the code include a "more precise definition" of
the terms "incapacity" and "disability," additional information 11
required of petitioners at the commencement of guardianship
proceedings, and more elaborate reporting requirements for
guardians. See Article V, Protection of Persons Under
Disability and Their Property, Massachusetts Comment, in The New
MUPC Is Here . . . and Now at 227 (Mass. Cont. Legal Educ.
2012).
The legal standard to be applied when determining whether a
guardian may be appointed over an individual requires us to read
the definition of an incapacitated person under § 5-101 (9),
together with the prerequisites for appointing a guardian under
§ 5-306 (b). Section 5-306 (b) provides that, after conducting
a hearing, a court may appoint a guardian where the petitioner
proves
"(1) a qualified person seeks appointment; (2) venue is proper; (3) the required notices have been given; (4) any required medical certificate is dated and the examination has taken place within [thirty] days prior to the hearing; (5) any required clinical team report is dated and the examinations have taken place within 180 days prior to the filing of the petition; (6) the person for whom a guardian is sought is an incapacitated person; (7) the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person; and (8) the person's needs cannot be met by less restrictive means, including use of appropriate technological assistance" (emphasis added).
See also G. L. c. 190B, § 1-201 (22) ("'Incapacitated person,'
an individual for whom a guardian has been appointed under part
3 of [G. L. c. 190B,] article V"). 12
The definition of an "incapacitated person" supplies the
substantive grounds for appointing a guardian for an individual,
for reasons apart from advanced age or youth. See Article V,
Protection of Persons Under Disability and Their Property,
Prefatory Note, supra. Under G. L. c. 190, § 5-101 (9), an
"incapacitated person" is defined as
"an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."
The standard of proof to be applied in a guardianship proceeding
is a preponderance of the evidence, see G. L. c. 190B, § 1-109,
and the burden of proof rests with the petitioner to prove that
a person is incapacitated. See Willett v. Willett, 333 Mass.
323, 324 (1955).
A guardianship may be general or limited in scope. See
G. L. c. 190B, § 5-303 (a) ("An incapacitated person or any
person interested in the welfare of the person alleged to be
incapacitated may petition for a determination of incapacity, in
whole or in part, and the appointment of a guardian, limited or
general"). When filing a petition for the appointment of a
guardian for an incapacitated person, a petitioner must indicate
on the form whether a general or limited guardianship is sought,
and define the scope of the guardianship. In the event that a 13
general guardianship is sought, the petitioner must offer an
explanation as to why a limited guardianship is "inappropriate."
"[T]he ability to create a limited guardianship is intended to
maximize the liberty and autonomy of a person subject to
guardianship." Guardianship of B.V.G., 474 Mass. 315, 323
(2016).3 Courts must exercise the authority conferred on them to
"encourage the development of maximum self-reliance and
independence of the incapacitated person and make appointive and
other orders only to the extent necessitated by the
incapacitated person's limitations or other conditions
warranting the procedure." G. L. c. 190B, § 5–306 (a).
Even where a guardian is appointed, whether general or
limited in scope, the guardian does not have the authority to
admit the incapacitated person to a nursing facility4 against the
3 The Massachusetts Uniform Probate Code Prefatory Note to article V provides, in part, "The call for 'limited guardianship' was a call for more sensitive procedures and for appointments fashioned so that the authority of the protector would intrude only to the degree necessary on the liberties and prerogatives of the protected person. In short, rather than permitting an all-or-none status, there should be an intermediate status available to the courts through which the protected person will have personal liberties and prerogatives restricted only to the extent necessary under the circumstances. The court should be admonished to look for a least-restrictive protection approach." Article V, Protection of Persons Under Disability and Their Property, Prefatory Note, in The New MUPC Is Here . . . and Now at 227 (Mass. Cont. Legal Educ. 2012).
4 With certain exceptions not relevant here, G. L. c. 190B, § 5-101 (15) defines a "[n]ursing facility" as "an institution or a distinct part of an institution which is primarily engaged 14
will of the incapacitated person "except upon a specific finding
by the court that such admission is in the incapacitated
person's best interest." G. L. c. 190B, § 5-309 (g).5
Accordingly, the appointment of a guardian over an incapacitated
person is necessary, but not by itself sufficient, to admit an
incapacitated person to a nursing facility against his or her
will. Such an admission requires an additional order by the
court based on a specific finding that the admission is in the
incapacitated person's best interest.
in providing to residents: (i) skilled nursing care and related services for residents who require medical or nursing care; (ii) rehabilitation services for the rehabilitation of injured, disabled or sick persons; or (iii) on a regular basis, health- related care and services to individuals who because of their mental or physical condition require care and services, above the level of room and board, which can be made available to that individual only through institutional facilities that are not primarily a mental health facility or developmentally disabled facility."
5 We note that, if five conditions are met, G. L. c. 190B, § 5-309 (g) carves out an exception to the requirement that a guardian may admit an incapacitated person to a nursing facility only where a court specifically finds that admission is in the incapacitated person's best interest. The five conditions are "(1) the admission shall not exceed [sixty] days; (2) any person authorized to sign a medical certificate recommends such admission; (3) neither any interested person nor the incapacitated person objects; (4) on or before such admission, a written notice of intent to admit the incapacitated person to a nursing facility for short term-services has been filed by the guardian in the appointing court and a copy thereof has been served in-hand on the incapacitated person and provided to the nursing facility; and (5) the incapacitated person is represented by counsel or counsel is appointed forthwith." 15
A Probate and Family Court judge does not have the
authority under the code to allow a hospital's request to admit
a patient to a skilled nursing facility against the will of the
patient where, as here, the judge has not found the patient to
be an incapacitated person and, therefore, has not appointed a
guardian for that patient. Indeed, even if the judge here had
found D.C. to be an incapacitated person and appointed a
guardian for her, the guardian would still lack the legal
authority to admit D.C. to a nursing facility against her will
unless the judge granted the guardian that specific authority by
making a "specific finding" that it was in D.C.'s best interest
to be admitted to a nursing facility.
Nor does a Probate and Family Court judge have the
authority under the code to appoint a limited guardian over a
person for the narrow purpose of admitting that person to a
nursing facility where the judge has not found the person to be
an incapacitated person. To be sure, where a person is found to
be incapacitated, as defined in G. L. c. 190, § 5-101 (9), and
"the principal reason for the guardianship is the [incapacitated
person's] inability to comprehend a personal medical problem,
the guardian's authority could be limited to making a judgment,
after evaluation of all circumstances, concerning the
advisability and form of treatment and to authorize actions
necessary to carry out the decision." Guardianship of B.V.G., 16
474 Mass. at 322, quoting Uniform Probate Code prior § 5-306
comment, 8 U.L.A. (Part III) 186 (Master ed. 2013). But that
limited authority cannot be granted to a limited guardian
without a finding that the person is an incapacitated person
and, where the decision is to admit the person against his or
her will to a nursing facility, without a specific finding by
the court that such admission is in the person's best interest.
Therefore, because the judge here made neither finding, the
judge erred in allowing the hospital's request to transfer and
admit D.C. to a skilled nursing facility.6
Thus, we address the questions posed by the judge as
follows:
1. A judge of the Probate and Family Court may not order a person to be admitted to a nursing facility against his or her will unless the judge appoints a guardian after finding that the person is an incapacitated person as defined in G. L. c. 190, § 5-101 (9), and then makes a specific finding that admission to a nursing facility is in the incapacitated person's best interest.
2. A judge of the Probate and Family Court does not have the authority to appoint a limited guardian over someone who is not an incapacitated person for the sole purpose of admitting that person to a nursing facility.
3. A judge of the Probate and Family Court does not have the authority to order someone who is not an incapacitated person to be transferred to a nursing facility.
6 We do not address the legal options available to an acute care hospital where a patient who is not incapacitated fails to leave upon discharge. 17
Conclusion. For the reasons given, the hospital's appeal
from the judge's order dated November 15, 2016, dismissing its
petition to appoint a guardian for D.C., is dismissed as moot,
and the subsequent report of the matter dated November 28, 2016,
is discharged. See Dorfman, 386 Mass. at 138 (discharging
report that did not comply with G. L. c. 215, § 13).
So ordered.