NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1015
GUARDIANSHIP OF J.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Probate and Family Court
found the respondent, J.L., to be an incapacitated person, and
entered a decree and order pursuant to G. L. c. 190B, § 5-
306 (b) (1)-(8). The respondent argues that the judge erred and
abused his discretion in denying his request to testify, finding
that the requirements of G. L. 190B, § 5-306 (b) (1)-(8) were
met even though the medical certificate was excluded from
evidence, and denying his motion to exclude the admission of his
medical records. We affirm.
Background. On November 21, 2022, the Veteran's
Administration (VA) Boston Healthcare System (petitioner) filed
a petition in the Probate and Family Court seeking the
appointment of a general guardian for J.L. because he "has
retained no ability to meet essential requirements for physical health, safety, and self-care." On November 29, 2022, a judge
appointed a temporary guardian for J.L. and subsequently
extended that order through October 20, 2023. On January 20,
2023, J.L. filed an objection to the issuance of a permanent
guardianship.
On October 20, 2023, a judge held a trial. We summarize
the facts as the judge might have found them. At the time of
trial, J.L. was a seventy-two year old Vietnam veteran with a
history of hypertension, coronary artery bypass graft, chronic
tobacco use, and alcohol use disorder. He had also been
diagnosed with a neurocognitive disorder and traumatic brain
injury. In October 2022, J.L. was admitted to a VA Hospital
after he was "found down" for an undetermined period of time and
was found to have moderate temporal and orbital wasting. While
J.L. was hospitalized, he executed a health care proxy naming
his sister, but she was not willing to serve as his health care
agent.
On March 23, 2023, J.L. was discharged to his apartment but
readmitted to the VA hospital on April 19, 2023, after a
wellness check by his social worker and peer specialist. Since
then, J.L. has resided in the community living center operated
by the VA in Brockton, which is a skilled nursing facility that
provides "24/7 nursing care and support." J.L. has been
2 engaging in structured activities related to his basic hygiene,
dressing, toileting needs, meal times, and social activities.
J.L. has shown stability in his medical and physical condition
in the setting of a structured environment and can communicate
his preferences and follow commands. He is independent with bed
mobility, transfers, propelling in his wheelchair, eating, and
oral hygiene. He has not exhibited any problematic behaviors
while at the facility, but he wishes to live independently in
his apartment.
Dr. Marcus Ruopp and Jennifer Benitz testified for the
petitioner. Dr. Ruopp, who served as J.L.'s direct care
provider at the time of trial, testified that when J.L. was
readmitted to the hospital in April 2023, he showed a moderate
to severe neurocognitive disorder and demonstrated cognitive,
functional, and physical decline. Dr. Ruopp testified that J.L.
did not understand the supports that he needs to be successful
and the reality of his decline since he went home. Benitz, a VA
social worker who began working with J.L. in 2020, testified
that in October 2022, she found J.L. lying in front of the door
to his apartment and unable to move. Benitz did not believe the
services J.L. had in place at the time were sufficient to keep
him safe at home.
3 The petitioner listed J.L. on its witness list, but rested
its case without calling J.L. to testify. Although J.L.'s
attorney did not file a witness list, J.L.'s counsel told the
judge that J.L. wanted to testify. The petitioner objected,
noting that counsel failed to submit a witness list. The judge
allowed J.L. to speak at trial and give a narrative statement,
asking him, "Do you want to tell us anything about why we're
here . . . and your ability to succeed at home? Anything like
[w]hat we've been discussing today?" J.L. told the judge that
he did not believe he needed a guardian and that he was capable
of taking care of himself. J.L. testified that he never fell
out of his wheelchair and that he finished taking his prescribed
medications and did not need them anymore. He did not recall
taking any medications and testified that he did not take any
medications for his cholesterol and diabetes because "everything
is all right."
After the trial concluded, the judge found that the
requirements of G. L. c. 190B, § 5-306 (b) (1)-(8) were met and
that a basis existed for the guardianship.
Discussion. 1. Limiting respondent's ability to testify.
J.L. argues that the judge erred by refusing to allow him to
testify because he was not on the respondent's witness list. We
disagree. We review the judge's ruling for abuse of discretion
4 or other error of law. See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
J.L. fails to show how standard testimonial evidence would
have led to a different outcome. The judge afforded J.L. the
ability to give a statement and invited him to tell the judge
what he wanted. Nothing in the record demonstrates that the
judge curtailed J.L.'s narrative or prevented him from
expressing himself. In fact, J.L. was able to express his
thoughts and beliefs without objection from the petitioner,
which arguably was more than he could have done had he testified
and been subjected to cross-examination. Further, J.L. did not
file a motion for a new trial and did not make any offers of
proof of what he might have said that would have affected the
outcome. Therefore, we discern no abuse of discretion or
prejudicial error. See L.L., 470 Mass. at 185 n.27.
2. Medical certificate. J.L. contends that because no
medical certificate was entered into evidence, the judge erred
by finding that the requirements of G. L. c. 190B, § 5-
306 (b) (1)-(8) had been met. We are not persuaded. As we
noted in Guardianship of A.R., 99 Mass. App. Ct. 349, 353-354
(2021), G. L. c. 190B, § 5-303 (b) (11) requires that a medical
certificate be filed with a petition for the appointment of a
guardianship of an incapacitated person. The medical
5 certificate form is used in the process of determining whether
to appoint a guardian and must be filed, as it was here, with a
guardianship petition.1 See Probate and Family Court
Guardianship and Conservatorship Form MPC 400.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1015
GUARDIANSHIP OF J.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Probate and Family Court
found the respondent, J.L., to be an incapacitated person, and
entered a decree and order pursuant to G. L. c. 190B, § 5-
306 (b) (1)-(8). The respondent argues that the judge erred and
abused his discretion in denying his request to testify, finding
that the requirements of G. L. 190B, § 5-306 (b) (1)-(8) were
met even though the medical certificate was excluded from
evidence, and denying his motion to exclude the admission of his
medical records. We affirm.
Background. On November 21, 2022, the Veteran's
Administration (VA) Boston Healthcare System (petitioner) filed
a petition in the Probate and Family Court seeking the
appointment of a general guardian for J.L. because he "has
retained no ability to meet essential requirements for physical health, safety, and self-care." On November 29, 2022, a judge
appointed a temporary guardian for J.L. and subsequently
extended that order through October 20, 2023. On January 20,
2023, J.L. filed an objection to the issuance of a permanent
guardianship.
On October 20, 2023, a judge held a trial. We summarize
the facts as the judge might have found them. At the time of
trial, J.L. was a seventy-two year old Vietnam veteran with a
history of hypertension, coronary artery bypass graft, chronic
tobacco use, and alcohol use disorder. He had also been
diagnosed with a neurocognitive disorder and traumatic brain
injury. In October 2022, J.L. was admitted to a VA Hospital
after he was "found down" for an undetermined period of time and
was found to have moderate temporal and orbital wasting. While
J.L. was hospitalized, he executed a health care proxy naming
his sister, but she was not willing to serve as his health care
agent.
On March 23, 2023, J.L. was discharged to his apartment but
readmitted to the VA hospital on April 19, 2023, after a
wellness check by his social worker and peer specialist. Since
then, J.L. has resided in the community living center operated
by the VA in Brockton, which is a skilled nursing facility that
provides "24/7 nursing care and support." J.L. has been
2 engaging in structured activities related to his basic hygiene,
dressing, toileting needs, meal times, and social activities.
J.L. has shown stability in his medical and physical condition
in the setting of a structured environment and can communicate
his preferences and follow commands. He is independent with bed
mobility, transfers, propelling in his wheelchair, eating, and
oral hygiene. He has not exhibited any problematic behaviors
while at the facility, but he wishes to live independently in
his apartment.
Dr. Marcus Ruopp and Jennifer Benitz testified for the
petitioner. Dr. Ruopp, who served as J.L.'s direct care
provider at the time of trial, testified that when J.L. was
readmitted to the hospital in April 2023, he showed a moderate
to severe neurocognitive disorder and demonstrated cognitive,
functional, and physical decline. Dr. Ruopp testified that J.L.
did not understand the supports that he needs to be successful
and the reality of his decline since he went home. Benitz, a VA
social worker who began working with J.L. in 2020, testified
that in October 2022, she found J.L. lying in front of the door
to his apartment and unable to move. Benitz did not believe the
services J.L. had in place at the time were sufficient to keep
him safe at home.
3 The petitioner listed J.L. on its witness list, but rested
its case without calling J.L. to testify. Although J.L.'s
attorney did not file a witness list, J.L.'s counsel told the
judge that J.L. wanted to testify. The petitioner objected,
noting that counsel failed to submit a witness list. The judge
allowed J.L. to speak at trial and give a narrative statement,
asking him, "Do you want to tell us anything about why we're
here . . . and your ability to succeed at home? Anything like
[w]hat we've been discussing today?" J.L. told the judge that
he did not believe he needed a guardian and that he was capable
of taking care of himself. J.L. testified that he never fell
out of his wheelchair and that he finished taking his prescribed
medications and did not need them anymore. He did not recall
taking any medications and testified that he did not take any
medications for his cholesterol and diabetes because "everything
is all right."
After the trial concluded, the judge found that the
requirements of G. L. c. 190B, § 5-306 (b) (1)-(8) were met and
that a basis existed for the guardianship.
Discussion. 1. Limiting respondent's ability to testify.
J.L. argues that the judge erred by refusing to allow him to
testify because he was not on the respondent's witness list. We
disagree. We review the judge's ruling for abuse of discretion
4 or other error of law. See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
J.L. fails to show how standard testimonial evidence would
have led to a different outcome. The judge afforded J.L. the
ability to give a statement and invited him to tell the judge
what he wanted. Nothing in the record demonstrates that the
judge curtailed J.L.'s narrative or prevented him from
expressing himself. In fact, J.L. was able to express his
thoughts and beliefs without objection from the petitioner,
which arguably was more than he could have done had he testified
and been subjected to cross-examination. Further, J.L. did not
file a motion for a new trial and did not make any offers of
proof of what he might have said that would have affected the
outcome. Therefore, we discern no abuse of discretion or
prejudicial error. See L.L., 470 Mass. at 185 n.27.
2. Medical certificate. J.L. contends that because no
medical certificate was entered into evidence, the judge erred
by finding that the requirements of G. L. c. 190B, § 5-
306 (b) (1)-(8) had been met. We are not persuaded. As we
noted in Guardianship of A.R., 99 Mass. App. Ct. 349, 353-354
(2021), G. L. c. 190B, § 5-303 (b) (11) requires that a medical
certificate be filed with a petition for the appointment of a
guardianship of an incapacitated person. The medical
5 certificate form is used in the process of determining whether
to appoint a guardian and must be filed, as it was here, with a
guardianship petition.1 See Probate and Family Court
Guardianship and Conservatorship Form MPC 400. That
requirement, however, does not mean that the document is
admissible. See Guardianship of A.R., supra at 354. The
medical certificate is a pleading and was therefore inadmissible
at trial. Id. at 355-356. We discern no error.
3. Medical records. J.L. argues that the trial judge
abused his discretion by admitting his medical records into
evidence because they were not certified pursuant to G. L.
c. 233, § 79 and because they contained hearsay. We review the
judge's evidentiary ruling for abuse of discretion. See N.E.
Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass.
358, 363 (2013). On April 27, 2023, another judge conducted a
pretrial conference hearing and issued a scheduling order
requiring counsel to serve all motions in limine and motions to
preclude evidence at least ten days before trial. At the
pretrial conference hearing, the petitioner gave notice that it
intended to offer J.L.'s VA hospital and other medical records
into evidence. J.L., however, did not file a motion in limine
1 An updated medical certificate must also be filed, as it was here, closer in time to the trial. See G. L. c. 190B, § 5- 306 (b) (4).
6 to preclude the introduction of the medical records until the
day of the trial. The petitioner objected to the late-filed
motion in limine, arguing that trial counsel had been on notice
since April 2023 of the petitioner's intent to offer the records
as evidence at trial and that counsel did not attempt to obtain
a copy of the records. The trial judge stated that he could
distinguish between what was admissible and what was not. The
petitioner made no reference to the medical records during
trial, and the judge did not make any findings relying on the
medical records. We conclude there was no abuse of discretion
or error.
Decree and order affirmed.
By the Court (Meade, Shin & Tan, JJ.2),
Clerk
Entered: August 5, 2025.
2 The panelists are listed in order of seniority.