Guardianship of L.S.

Opinion

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

22-P-1104

GUARDIANSHIP OF L.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, a judge of the Probate and Family

Court found the respondent L.S. to be an incapacitated person

and entered a decree appointing a guardian on her behalf. See

G. L. c. 190B, §§ 5-101, 5-306. L.S. appeals, arguing that the

judge erred by admitting a guardian ad litem (GAL) report in

evidence, that the evidence was insufficient to prove that L.S.

was an incapacitated person, and that the judge lacked authority

to empower the guardian to revoke L.S.'s health care proxy. We

affirm.

Background. At the time of trial in April 2022, L.S. was

sixty-two years old and living in a nursing facility. She was

diagnosed with diabetes, depression, anxiety, and dementia and

had been hospitalized over fifty times between August 2020 and

April 2021.

On April 15, 2021, before L.S. was admitted to the nursing

facility, the Elder Services of Worcester Area, Inc. (ESWA), filed an ex parte petition and motion for emergency orders under

G. L. c. 19A, § 20 (elder-abuse petition), claiming that L.S.

was at serious risk of harm to herself and others and in need of

protective services. ESWA alleged that L.S. was chronically

homeless despite intervention; that she had presented at the

emergency room fifty-five times in the prior twelve months; that

she frequently left the hospital with her daughter, who made

assurances that she would care for her mother and find her

suitable housing; but that L.S. nonetheless continued to return

to the emergency room or the homeless shelter. ESWA further

alleged that L.S. executed a document on April 6, 2021, naming

her daughter as her health care proxy, but there were "serious

concerns" about L.S.'s capacity to execute the document.

The same day the petition was filed, a Probate and Family

Court judge issued an emergency order finding that there was

reasonable cause to believe that L.S. was in need of protective

services. The judge directed that L.S. not be returned to the

care of her daughter and that her health care proxy be

temporarily revoked pending further court order. A few days

later, the judge appointed a GAL to investigate and report to

the court whether L.S. was suffering from elder abuse and

whether she lacked the capacity to consent to the provision of

protective services.

2 Meanwhile, on April 16, 2021, UMass Memorial Healthcare,

Inc. (UMass Memorial), filed the underlying petition for

appointment of a guardian for L.S. (guardianship petition).

UMass Memorial filed the guardianship petition after L.S.

presented at the emergency room on April 11, 2021 -- less than

forty-eight hours after she had been discharged home with her

daughter -- reporting that her daughter had thrown her out of

the home. The same judge who acted on the elder-abuse petition

appointed a temporary guardian for L.S. The judge also

appointed counsel, who filed an objection on behalf of L.S.

alleging that she was not an incapacitated person and that her

health care proxy was valid. UMass Memorial later withdrew from

the guardianship matter, and ESWA intervened.

At trial ESWA called one witness, Eleni Klostri, a

psychiatric mental health nurse practitioner qualified as an

expert in her field, who had examined L.S. five times in the

months leading up to trial. L.S. also called one witness, the

GAL appointed in connection with the elder-abuse petition. The

GAL's report, completed in December 2021, was admitted in

evidence over L.S.'s objection.

Following the trial, and based primarily on Klostri's

testimony, the judge found that L.S. was an incapacitated person

within the meaning of G. L. c. 190B, § 5-101. As a result the

judge entered a decree of appointment of a guardian, granting

3 the guardian all powers authorized by G. L. c. 190B, Article V,

Part III. The decree also specifically authorized the guardian

to admit L.S. to a nursing facility and to revoke her health

care proxy.

Discussion. 1. Admission of GAL report. L.S.'s first

argument on appeal is that the judge erred by admitting the GAL

report in evidence because there is no statute specifically

authorizing the admission of GAL reports in adult guardianship

proceedings. We conclude that this argument is waived because

L.S. did not timely raise it to the judge. At the pretrial

conference on December 13, 2021, the judge stated that the GAL

report would be admitted in evidence and that L.S.'s attorney

should subpoena the GAL if he wished to cross-examine him.

L.S.'s attorney did not object. The judge then issued a

pretrial order, which stated that the GAL report "shall be an

evidentiary [e]xhibit at [t]rial" and, if either party objected

to the admission of any part of the report, a motion in limine

or to strike had to be filed in time to be heard at least ten

days prior to trial. Almost four months later on April 11,

2022, exactly ten days prior to the scheduled trial date, L.S.

filed a motion in limine to exclude the GAL report. After a

hearing on April 13, 2022, the judge denied the motion as

untimely, observing that L.S.'s attorney "had four months to get

[it] done" and that he failed to comply with "a very specific

4 trial order." This ruling was within the judge's wide

discretion to manage his docket and the conduct of the

proceeding. See State Realty Co. of Boston, Inc. v. MacNeil

Bros. Co., 358 Mass. 374, 379 (1970).

In any event, even assuming no waiver, L.S. has failed to

show that the judge abused his discretion in admitting the GAL's

report. As we held in Guardianship of Pollard, 54 Mass. App.

Ct. 318, 323 (2002), an adult guardianship case, "[a] GAL's

report is ordinarily admissible and its use at trial should be

anticipated." See also Sarkisian v. Benjamin, 62 Mass. App. Ct.

741, 745 (2005) ("guardian ad litem acts as an arm of the court

and is an integral part of the judicial process"). GAL reports

are admissible even if they contain hearsay material, so long as

the GAL is "available to testify at trial and . . . the source

of the material [is] sufficiently identified so that the

affected party has an opportunity to rebut any adverse or

erroneous material contained" in the report. Guardianship of

Pollard, supra at 323-324, quoting Adoption of Georgia, 433

Mass. 62, 69 (2000). Here, the GAL was available to testify and

did in fact testify at trial, and L.S. raises no claim that the

source of any hearsay material in his report was unclear. The

judge was therefore within his discretion to admit the report.

See Guardianship of Pollard, supra at 324 (no abuse of

discretion in denying motion to strike GAL's report).

5 2. Sufficiency of evidence. L.S. next contends that the

evidence was insufficient to show that she was an incapacitated

person under G. L. c. 190B, § 5-101 (9).1 Our review of the

judge's ruling is not de novo, as L.S. suggests, but for abuse

of discretion or other error of law. See Guardianship of C.A.,

102 Mass. App. Ct. 392, 395 (2023). Under this standard "[t]he

question is not whether we would have found as did the [judge],

but whether on the entire evidence we are left with the definite

and firm conviction that a mistake has been committed."

Guardianship of Jackson, 61 Mass. App. Ct. 768, 774 (2004). It

was ESWA's burden at trial to prove by a preponderance of the

evidence that L.S. was an incapacitated person. See

Guardianship of C.A., supra.

The judge properly concluded that ESWA met its burden.

Based on Klostri's testimony, the judge found that L.S. had

moderate to severe cognitive impairment and "deficits in all

areas of medical and emotional functioning," which put her "at

risk physically and emotionally." She was unable to name her

medications, identify the appropriate doses of her insulin, meet

1 That statute defines "incapacitated person" 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." G. L. c. 190B, § 5-101 (9).

6 the requirements for her self-care, or use coping safety

strategies when emotionally deregulated. Even while under

supervision, L.S. unintentionally harmed herself with nail

clippers. The judge specifically credited Klostri's opinion

that, because of these deficits, L.S. required twenty-four hour

supervision and did not have the capacity to make decisions to

protect her health, safety, and welfare. We defer to the

judge's assessment of the credibility of the witnesses, and we

see nothing in the record to indicate that his decision was

against the weight of the evidence. See Guardianship of

Jackson, 61 Mass. App. Ct. at 774.

We are unpersuaded by L.S.'s argument that the judge failed

to give sufficient consideration to evidence that L.S. was

willing to remain in the nursing facility, accepted the care

provided to her by the staff, and was able to make medical

decisions in that structured environment. This evidence does

not detract from the judge's finding that L.S. needed twenty-

four hour supervision and did not have the capacity to make

medical decisions on her own. At bottom L.S.'s challenge

amounts to a disagreement with how the judge weighed the

evidence, a matter that is entrusted to his discretion. See

Guardianship of Jackson, 61 Mass. App. Ct. at 774.

3. Health care proxy. Lastly, L.S. argues that the judge

erred by empowering the guardian to revoke L.S.'s health care

7 proxy. To the extent L.S. claims that a health care proxy can

only be revoked through a special proceeding under G. L.

c. 201D, § 17,2 we disagree. In Guardianship of Mason, 41 Mass.

App. Ct. 298, 304 (1996), we held that a judge may treat a

complaint for appointment of a guardian "as also seeking an

override" of a health care proxy. Thus, a dispute regarding a

health care proxy may be resolved in a guardianship proceeding,

regardless of whether a separate complaint was filed under G. L.

c. 201D, § 17.

We also disagree with L.S.'s contention that the evidence

did not support the judge's decision to override the health care

proxy. Under G. L. c. 201D, § 17 (ii), an agent may be "removed

on the ground that the agent is not reasonably available,

willing and competent to fulfill his or her obligations under

this chapter or is acting in bad faith." The agent's

obligations include the duty to make health care decisions

"based upon a true assessment of [the principal's] best

interests." Guardianship of Mason, 41 Mass. App. Ct. at 305.

See G. L. c. 201D, § 5.

2 That statute authorizes a health care provider, conservator, guardian, family member, or close friend of the principal or the commissioner of public health to commence a special proceeding to determine the validity of the principal's health care proxy, to remove an agent, or to override an agent's decision about health care treatment. See G. L. c. 201D, § 17.

8 The evidence here was sufficient to show that L.S.'s

daughter did not make decisions in accordance with L.S.'s best

interests. As detailed in the GAL's report, L.S. was

chronically homeless, despite the daughter's assurances to

hospital staff that she would care for her mother at home and

monitor her closely. Between March 2020 and April 2021, L.S.

presented at the emergency room fifty-seven times, sometimes

reporting that her daughter had thrown her out of the home.

Also, on multiple occasions, the daughter was seen dropping L.S.

off at the homeless shelter, despite knowing that L.S. was

barred from the shelter and that it could not meet her medical

needs.

Based on the information uncovered in his investigation,

the GAL concluded that the daughter had abused L.S. by

"fail[ing] to take action to protect her . . . and ensure that

her needs were met." The judge implicitly credited the GAL's

conclusion, which was sufficient to justify overriding the

health care proxy. While it would have been better had the

judge made more express findings regarding the proxy, the GAL's

report provided ample basis for the judge to authorize someone

other than the daughter to make health care decisions on L.S.'s

behalf. Faced with a similar situation in Guardianship of

Mason, 41 Mass. App. Ct. at 304-305, we concluded that it was

proper for the judge to override a health care proxy and appoint

9 a temporary guardian, where the GAL reported that the agent (the

principal's son) was "unable to objectively separate his

mother's needs from his own and/or to prioritize her needs" and

had demonstrated a poor ability to work with her providers.

Likewise here, the GAL's report established that the daughter

"had not made and would not make decisions in accordance with

the standards set out in G. L. c. 201D, § 5." Id. at 305. The

judge was thus warranted in empowering the guardian to revoke

the health care proxy.

Decree affirmed.

By the Court (Shin, Brennan & Hodgens, JJ.3),

Clerk

Entered: December 1, 2023.

3 The panelists are listed in order of seniority.