(dissenting). With a significant loss of liberty and her own bodily integrity at stake, L.H., though represented by appointed counsel throughout these proceedings, was left without an advocate for her interests, and was forced to express those interests herself in the face of cross-examination, expert testimony, and argument against her by her own counsel. While L.H. repeatedly asserted that the side effects of the antipsychotic medication caused “anxiety [and] despair” and felt like “torture,” and that she would “rather be dead” than take it, her counsel took the position of the adversary, Lowell Health Care Center (LHCC), specifically, two staff members of LHCC (collectively, petitioners). Just as L.H.’s counsel and expert advocated, the August 30, 2010, hearing resulted in orders for her guardianship and for the involuntary administration of an anti-psychotic drug, Risperdal. The majority maintains that despite this predicament, L.H. was not deprived of the effective assistance of counsel because the record does not reveal whether her counsel’s actions were strategic and, in any case, because there was ample evidence to support the Probate and Family Court judge’s decisions. I disagree. When a client’s interests are not represented by her attorney and a judge’s decision relies upon testimony and argument arising from the client’s attorney’s deficient representation,1 the client suffers prejudice and is denied the effective assistance of counsel. Accordingly, I respectfully dissent.
a. L.H. ’s attorney knew his client’s interests. Over the course of three hearings, L.H. made her position clear to counsel and to the judge. At an abbreviated hearing on August 16, 2010, L.H. expressed her unequivocal opposition to the administration of antipsychotic medications. At the hearing on August 30, 2010, she testified that she had taken a low dose of Risperdal a few years earlier for a several-month period and had experienced “severe side effects” including loss of bladder control, vision problems, pain, anxiety, and despair. She added, “I’d rather you kill me than go through that again.” L.H. also indicated that as *723far back as the 1980s, before she was diagnosed with multiple sclerosis (MS), she had taken an antipsychotic medication called Haldol, which also caused severe side effects. At the end of the hearing, L.H. asked to address the judge and restated her concerns about the side effects of antipsychotic medications. She stated, “I’d rather be dead. . . . [Pjlease don’t let them hurt me .... I can’t go back there. I’m begging for my life.” L.H. also testified at the reinstatement hearing on September 1, 2011, and described the side effects she had experienced from Risperdal. She said, “I had extreme exacerbation of my anxiety and my migraine variance, which made me . . . catatonic.” She added, “I started chewing my mouth hours at a time,” and “I’ve had . . . these reactions to similar medications before.” She explained that her refusal to take Risperdal was “because of the unbearable side effects,” adding, “I’d rather be dead than go through that.” She described her condition as follows: “I’m not psychotic, I am not paranoid. I am neurotic, I’m anxious, I’m traumatized.” To conclude her testimony, she said, “Your Honor, the reason I came here today, as sick as I am, is, again, when I was last here I told you I was on these medications before with disastrous consequences.” In short, L.H. was familiar with the effects of antipsychotic medication and was strongly opposed to taking them.
b. Right to refuse medical treatment. Under Massachusetts law, every person has the right to accept or to reject medical treatment, even when the decision is contrary to the express wishes of qualified medical personnel acting in what they consider to be the person’s best interests. See Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 738-739, 745 (1977); Guardianship of Roe, 383 Mass. 415, 433-435 (1981); Harnish v. Children’s Hosp. Med. Center, 387 Mass. 152, 154 (1982). “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint and interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).2 Moreover, there are “few legitimate medical procedures *724which are more intrusive than the forcible injection of antipsychotic medication.” Guardianship of Roe, supra at 436.3
This right is enjoyed equally by those who may be incompetent as well as by the competent “because the value of human dignity extends to both. ... To protect the incompetent person within its power, the State must recognize the dignity and worth of such a person and afford to that person the same panoply of rights and choices it recognizes in competent persons.” Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489, 499-500 (1983), quoting from Saikewicz, 373 Mass, at 745-746. When, due to mental illness, a person lacks the capacity to consent to medical treatment, the methodology to preserve and to implement free choice and self-determination is substituted judgment. In proceedings both for guardianship and for treatment based on substituted judgment, a judge has an obligation to determine, whenever it is possible, the allegedly incapacitated person’s “desires and intentions.” Guardianship of Zaltman, 65 Mass. App. Ct. 678, 685 (2006). In fact, the incapacitated person’s personal preference is regarded as a “critical factor” in the judge’s decision:
“An individual’s stated preference has traditionally been considered a ‘critical factor’ by courts in determining mat*725ters of guardianship. . . . Even if [the ward] lacked the capacity to make [her own] treatment decisions at the time, [her] expressed preference ‘must be treated as a critical factor in the determination of [her] “best interests,” ’ . . . since it is the patient’s true desire that the court must ascertain. . . . [Procedural intricacies and technical niceties must yield to the need to know the actual values and preferences of the ward.”
Id. at 685-686 (citations omitted).
The law acknowledges that there are differing degrees of incapacitation, that among those who are found to be incapacitated and in need of guardianship there are persons who have “decision-making capability” as to some though not all of then-personal affairs, and that “a mentally ill person may still possess the faculties to have an informed opinion about her treat-Id. at 687 (citations omitted). See Matter of Spring, 8 Mass. App. Ct. 831, 838 (1979), S.C., 380 Mass. 629 (1980) (“when a person becomes incompetent to formulate a lucid judgment he is not thereby stripped of the right of choice enjoyed by others in the making of treatment decisions”). In short, L.H. had a right to assert her refusal of treatment, and to have that refusal considered by the judge.
c. Counsel’s duty to represent L.H.’s interests. Although L.H.’s right to counsel is based on provisions of the Massachusetts Uniform Probate Code, specifically, G. L. c. 190B, §§ 5-106(a) and 5-306A(a), her counsel’s obligations are defined by common and constitutional law, and rules established by the Supreme Judicial Court.
1. Case law. An observation in the very helpful amicus brief, submitted jointly by the Mental Health Legal Advisors Committee, the Disability Law Center, and the Center for Public Representation, deserves emphasis: “[e]mpirical studies establish that the quality of counsel is the single most important factor determining the disposition of hearings related to involuntary medical care.”4 The emerging consensus of the State courts that have considered the issue in recent years is that the “attorney’s role is not to determine whether the client is competent to make *726a decision, but to advocate the decision that the client makes.” Matter of M.R., 135 N.J. 155, 176 (1994).5
In Matter of M.R., the New Jersey Supreme Court explained why it is vital that the lawyer represent the stated interests of a client who may be under a disability:
“Advocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system. An attorney proceeds without well-defined standards if he or she forsakes a client’s instructions for the attorney’s perception of the *727client’s best interests .... Further, ‘if counsel has already concluded that his client needs “help,” ’ he is more likely to provide only procedural formality, rather than vigorous representation. . . . Finally, the attorney who undertakes to act according to a best-interest standard may be forced to make decisions concerning the client’s mental capacity that the attorney is unqualified to make.”
Id. at 176-177.6
2. Massachusetts Rules of Professional Conduct. Supreme Judicial Court Rule 3:07, as appearing in 426 Mass. 1303 (1998), i.e., the Rules of Professional Conduct, directly addresses the obligations of counsel in cases “when a client’s capacity to make adequately considered decisions ... is diminished . . . because of . . . mental impairment.” Mass.R.Prof.C. 1.14(a), as appearing in 452 Mass. 1301 (2008). Rule 1.14 provides that “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” This means that when an attorney represents a client with diminished capacity due to mental illness, counsel still has the duties to provide competent representation, see Mass.R.Prof.C. 1.1, 426 Mass. 1308 (1998); to seek the lawful objectives of the client, see Mass.R.Prof.C. 1.2, 426 Mass. 1310 (1998); to act reasonably diligently and to represent her zealously, see Mass.R.Prof.C. 1.3, 426 Mass. 1313 (1998); to maintain communications with and advise the client, see Mass.R.Prof.C. 1.4, 426 Mass. 1314 (1998); and to maintain client confidences as far as reasonably possible, see Mass.R.Prof.C. 1.6, 426 Mass. 1435 (1998).7
*728It should be noted that in circumstances in which a lawyer concludes that the client “insists upon pursuing an objective that the lawyer considers repugnant or imprudent,” the Rules of Professional Conduct permit the lawyer to withdraw from the representation. Mass.R.Prof.C. 1.16(b)(3), (c), 426 Mass. 1369 (1998). See, e.g., Red Dog v. State, 625 A.2d 245, 247 (Del. 1993) (attorney allowed to withdraw from representation of criminal defendant who made deliberate decision to accept death penalty). No motion to withdraw was filed in this case. Until a motion to withdraw is allowed, counsel’s duty of zealous advocacy is paramount.
3. Committee for Public Counsel Services performance standards. A third source of important guidance to Massachusetts lawyers who face the challenge of representing a client with diminished capacity due to mental illness in substituted judgment proceedings is the Committee for Public Counsel Services (CPCS). Pursuant to G. L. c. 211D, §§ 6(b) and 9, CPCS has promulgated “performance standards governing the representation of indigent adults in guardianship proceedings under G. L. c. 190B (including ‘substituted judgment’ matters) and in authorization to treat proceedings under G. L. c. 123” (CPCS guidelines), which “describe the steps which must, at a minimum, be taken by an attorney” assigned to represent an adult client in guardianship proceedings as well as in proceedings seeking the authority to administer antipsychotic medication. Guideline 1 states that counsel for L.H. “must oppose the [substituted judgment] petition and present ‘all reasonable alternatives’ to the proffered treatment.” 8’9 Furthermore, guideline 12 states that counsel must “act as a zealous advocate for the client, insuring *729that proper procedures are followed and that the client’s interests are well represented.”10
Under both Mass.R.Prof.C. 1.14 and the CPCS guidelines, any differences notwithstanding, a lawyer in a guardianship case must oppose the petition and must zealously advocate for the client. More specifically, pursuant to guideline 12, the lawyer must “(a) file any and all appropriate motions and legal memoranda, including but not limited to motions regarding the assertion of privileges and confidential relationships, and the admission, exclusion or limitation of evidence; (b) present and cross-examine witnesses, and provide evidence in support of the client’s position; (c) make any and all appropriate evidentiary objections and offers of proof, so as to preserve the record on appeal; and (d) take any and all other necessary and appropriate actions to advocate for the client’s interests.”
The adversarial model does not place counsel for a mentally *730ill or even incompetent client in an ethical quandary. In the adversarial model, there will be a decision by a neutral and detached judge that is the product of evidence produced with the aid of vigorous advocacy from a petitioner’s counsel and a client’s counsel, as well as input from the guardian ad litem. It is simply not the role of the client’s counsel to assume responsibilities that belong to others.
d. Counsel failed to represent L.H. ’s interests. My analysis of counsel’s representation focuses on two hearings: one held on August 30, 2010, and a second held on September 1, 2011. At both hearings, L.H.’s counsel actively worked against her interests.
1. August 30, 2010, hearing. At this hearing, counsel for the petitioners informed the judge that in addition to a permanent guardianship, they also sought approval to treat L.H. with Risperdal. One of the petitioners’ witnesses was Dr. Anthony Joseph, a psychiatrist. On cross-examination of Joseph, L.H.’s counsel went farther than petitioners’ counsel and elicited information about Joseph’s role at LHCC, his interactions with L.H., her medical and psychiatric history, and the basis for his opinion that she required antipsychotic medication. When prompted by L.H.’s counsel, Joseph gave examples of her paranoid behavior from his personal interactions with her, such as her belief that staff persons at LHCC had tried to harm her. Joseph also was given the opportunity to expand upon his own recommended treatment using antipsychotic medication and to explain how it would have only a few side effects.
Counsel for L.H. also called Dr. David Rosmarin as an expert witness. With Rosmarin’s testimony, counsel severely damaged his client’s position. Contrary to L.H.’s explicit and consistent wishes, her counsel elicited from Rosmarin his view that she was not credible, that she presently was incapable of living independently in the community, that she needed to have a guardian, and that she needed behavioral treatment and antipsychotic medication. Rosmarin testified, in a narrative style, that L.H. suffers from MS, and added that she was “intentionally uncooperative on physical exam” and was “malingering additional effects of weakness.” He noted that L.H. did not have significant cognitive impairment from MS, but “contrary to her testimony” she was *731admitted to the mental health system in New York because her apartments “were uninhabitable from a hygienic point.” Rosmarin testified further that L.H. has “psychiatric overlays” to her MS, including a “personality disorder” that “grades into, briefly, paranoia.” He added that she was either “lying” about the abuse she suffered in an effort to get out of LHCC or paranoid. Rosmarin opined that L.H. needed a “strict behavioral program” as opposed to her current program, which he believed was too willing to meet her “bizarre” demands. As for medications, Rosmarin opined that she needed “a very low dose of antipsychotic [s]. ”
In his closing argument, L.H.’s counsel conceded his client’s position. He argued that “she needs behavioral treatment more than and perhaps instead of the antipsychotic medications.” However, he then agreed with the judge that L.H.’s expert indeed had testified that she also needed antipsychotic medication, adding only that Rosmarin favored a lower dose of it than Joseph.
The lack of opposition by L.H.’s counsel and expert was the basis for the judge’s determination. At the hearing, the judge stated that “the testimony of the two physicians that have been proffered to the court today are really not diametrically opposed. They both appear to me to agree that treatment is needed, continuation of the guardianship is warranted, and that the treatment plan as proposed, actually by both physicians, in my opinion, involve both medical treatment, a psychotropic drug treatment, together with a behavioral treatment.”11
2. September 1, 2011, hearing. On September 1, 2011, the judge conducted a hearing on the petitioners’ motion to reinstate the Rogers order, which had expired in December, 2010. *732Counsel for the petitioners informed the judge, without objection, that the original order was the result of an “uncontested” proceeding, and that LHCC wanted both to reinstate the order and to obtain approval for the administration of Risperdal by injection as opposed to orally because L.H. was “refusing periodically” to take her medication.
Counsel also failed to object to the hearsay testimony by Thomas B. Concannon, the guardian and Rogers monitor. When asked if he had “an opinion with regard to the proposed amendment to put the intramuscular Risperdal on the Rogers treatment,” he answered, without objection, “From talking to the social workers, I think it’s worth trying.”
The final witness to testify was L.H. After repeating some of her earlier complaints, and being assured by the judge that she had been heard, L.H.’s lawyer addressed this remark to his client: “You need to understand that he’s not listening to anything more. I told you you had to stop. I said stand up, speak up, shut up.” The judge ruled that, based on the testimony of the three witnesses, the Rogers order was reinstated and expanded.
e. Prejudice to L.H. by counsel’s failure to represent her interests. Ordinarily, a claim of ineffective assistance of counsel will not be considered for the first time on appeal. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). However, “when the factual basis of the claim appears indisputably on the trial record,” the rule is more flexible. Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007). See generally Commonwealth v. Frisino, 21 Mass. App. Ct. 551 (1986). See also In re V.V., 349 S.W.3d 548, 587-588 (Tex. App. 2010) (noting “shocking brevity” of petitioner’s parental rights termination trial; among counsel’s numerous failings was failure to object to prejudicial evidence offered against client). As noted supra, counsel for L.H. (1) failed to object to prejudicial hearsay testimony by Concannon; (2) failed to object to Concannon’s unqualified expert opinion that L.H. “needs some medication”; (3) enhanced the weight of the testimony by Joseph on direct examination as to L.H.’s incapacity and need for antipsychotic medication by filling in the missing gaps through cross-examination of Joseph;12 (4) severely damaged the position he *733outlined in his opening statement (opposition to the administration of any antipsychotics) by calling Rosmarin as a witness and allowing him to testify in a narrative form that (a) L.H. was not credible; (b) she required a guardian and needed the administration of antipsychotics (albeit in a dose lower than that recommended by Joseph); and (c) in most respects he agreed with and supported the assessment and recommendations made by Joseph; and (5) effectively conceded in an exchange with the judge that it would be appropriate for L.H. to be given some dose of an antipsychotic. Counsel, in effect, conceded the truth of the petitioners’ case.
Just as “unauthorized concessions of guilt” may constitute presumptive prejudice for purposes of ineffective assistance claims in criminal cases, Commonwealth v. Velez, 77 Mass. App. Ct. 270, 277 n.9 (2010), prejudice should be found in guardianship proceedings involving a request for a Rogers order in which the client has unequivocally and consistently opposed the administration of antipsychotics, but L.H.’s counsel, in effect, concedes that she would benefit from the administration of some dose of antipsychotic medication.13’14
Nothing useful would be accomplished by remanding this case for a factual inquiry by the judge because the decisions made by L.H.’s counsel were contrary to the express wishes of his client, and thus manifestly unreasonable. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (there may be cases “where the defense was so botched” that there would be no value in factual inquiry as to prejudice).
f. Conclusion. In Commonwealth v. Saferian, 366 Mass. 89 (1974), the Supreme Judicial Court rightly warned that if the doctrine of ineffective assistance of counsel developed into a *734right to a new trial whenever it is demonstrated that counsel’s performance was deficient when measured against that of the reasonably competent attorney, judges “would become Penelopes, forever engaged in unravelling the webs they wove.” Id. at 99, quoting from Jorgensen v. York Ice Mach. Corp., 160 F.2d 432, 435 (2d Cir.), cert. denied, 332 U.S. 764 (1947). However, apart from whether I believe the outcome of a new trial would be different, the integrity of the adversarial process is at risk when counsel’s deficiencies suppress the expression of his client’s interests. As the Montana Supreme Court observed when addressing a similar issue in Matter of K.G.F., 306 Mont. 1, 14 (2001):
“However enlightened we, as a society, may have become in the intervening 75 years since Buck v. Bell, [274 U.S. 200 (1927),] we must nevertheless be cautious and critical of signs of paternalism legitimized by the parens patriae doctrine, where State actors purport to have an absolute understanding of what is in the best interests of an individual, whose liberty, dignity and privacy are at issue, and whose voice is muted by the swift and overriding authority of court-appointed professionals.”
To ensure that the right to effective assistance of counsel does not become a hollow promise, it is imperative that we order a new trial when, as in this case, the record demonstrates that court-appointed counsel not only failed to advocate for his Ghent’s interests, but became an advocate for the very position his client opposed. For the within reasons, I respectfully dissent.15
The lack of opposition by L.H.’s counsel and expert was the basis for the judge’s determination. The judge explained that “the testimony of the two physicians that have been proffered to the court today are really not diametrically opposed.”
The United States Supreme Court long has stressed the “significant liberty *724interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment [to the United States Constitution].” Washington v. Harper, 494 U.S. 210, 221-222 (1990). Likewise, the Supreme Judicial Court has “consistently respected the right of a person to be free from nonconsensual invasion of bodily integrity.” Matter of Moe, 385 Mass. 555, 564 (1982). This principle is derived from our understanding that individual choice and self-determination are “fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.” Saikewicz, supra at 742.
“Although psychotropic drugs are effective in reducing thought disorder and may benefit the patient by allowing her to participate in other types of treatment, the drugs also may have serious short term side-effects, including blurred vision, dry mouth and throat, constipation, diarrhea, dizziness, slowing of the thought processes, weight gain, loss of sexual desire, akathesia (inability to stay still), and Parkinsonisms (drooling, muscle stiffness, rigidity, shuffling gait, tremors). . . . Neuroleptic malignant syndrome also may develop as a side effect, in the form of fever, skeletal rigidity, tachycardia, and alterations in consciousness including delirium, mutism, stupor and coma.” Guardianship of Boyle, 674 A.2d 912, 917 (Me. 1996) (Lipez, J., dissenting).
See Morris, Pursuing Justice for the Mentally Disabled, 42 San Diego L. Rev. 757, 769 (2005).
Accord Gross v. Rell, 304 Conn. 234, 269 (2012) (“governing standard for the representation of impaired adult clients is not the protection of their best interests, but, to the extent possible, the zealous advocacy of their expressed preferences. This is true even if the Probate Court has appointed a conservator for the client”); Estate of Leonard v. Swift, 656 N.W.2d 132, 142 (Iowa 2003) (“More specifically, a guardian ad litem serves the court, advising the court, after an impartial investigation, of any defense to the action held by the ward. In contrast, the attorney represents the ward and must advise the ward of his rights and ensure that those rights are protected by making certain the proceedings comply with the statutory and constitutional requirements of Iowa law. In summary, the guardian ad litem advocates for the best interests of the ward, whereas an attorney advances the wishes of the ward”); In re Lee, 132 Md. App. 696, 718, 721 (2000) (“The duties of an attorney may at times directly conflict with the duties of a guardian ad litem. It is the role of an attorney to explain the proceedings to his client and advise him of his rights, . . . keep his confidences,. . . advocate his position,. . . and protect his interests. . . . The duty to maintain ‘as far as reasonably possible ... a normal client-lawyer relationship’ precludes an attorney from acting solely as an arm of the court, somewhat in the nature of a special master, and using his assessment of the ‘best interests’ of the client to justify waiving the client’s rights without consultation, divulging the client’s confidences, disregarding the client’s wishes, and even presenting evidence against him or her”); Orr v. Knowles, 215 Neb. 49, 53 (1983) (“The Code of Professional Responsibility establishes that an attorney must zealously represent the wishes of his or her client. . . . It is not the role of an attorney acting as counsel to independently determine what is best for his client and then act accordingly. Rather, such an attorney is to allow the client to determine what is in the client’s best interests and then act according to the wishes of that client within the limits of the law”); Guardianship of Stevenson, 825 N.W.2d 911, 914-915 (S.D. 2013) (“Traditionally, an attorney is appointed to zealously advocate for a protected person’s wishes, regardless of whether those wishes are in that person’s best interests. A court representative [or guardian ad litem], on the other hand, is appointed to act in a protected person’s best interests”); Guardianship of Jennifer M., 323 Wis. 2d 126, 133 (Ct. App. 2009) (“Award’s adversary counsel ‘shall be an advocate for the expressed wishes of the . . . ward’ ”), quoting from Wis. Stat. § 54.42(1)(b).
The due process model of adversarial representation is not less suited to guardianship and other mental health proceedings because there is so often a focus on medical and psychiatric issues in such cases. “It is precisely the subtleties and nuances of psychiatric diagnoses that justify the requirement of adversary hearings.” Vitek v. Jones, 445 U.S. 480, 495 (1980) (citation omitted). Also, it is important to consider that a “consistent finding[] in the procedural justice literature is that the sense of fairness that arises out of genuinely adversarial proceedings evokes greater satisfaction with the outcome and more acceptance of the verdict, even by the losing party.” Stransky, Civil Commitment and the Right to Refuse Treatment: Resolving Disputes From a Due Process Perspective, 50 U. Miami L. Rev. 413, 441 (1996).
The rules provide further guidance when the lawyer believes the client’s diminished capacity creates certain defined risks. See Mass.R.Prof.C. 1.14(b). Comment 7 to rule 1.14, amended in the wake of Care & Protection of *728Georgette, 439 Mass. 28 (2003), outlines options available to counsel in circumstances when “achieving the client’s expressed preferences would place the client at risk of a substantial harm.” On the record before us, there is no evidence that L.H. was at risk of substantial harm (physical, financial, or otherwise) if she did not receive treatment with antipsychotic medication. The petitioners described the purpose of seeking consent to administer antipsychotics as simply to improve the quality of her life to enable her to move to an environment less restrictive than that of a nursing home.
Guideline 1 states as follows: “The role of counsel is to diligently and zealously advocate on behalf of his or her client, within the scope of the assignment, to ensure that the client is afforded all of his or her due process and other rights. To that end, only in exceptional circumstances may counsel stipulate to the client’s incapacity; provided, however, that in proceedings in *729which a substituted judgment determination is required, counsel must oppose the petition and present ‘all reasonable alternatives’ to the proffered treatment for the court’s consideration. See In the Matter of Moe, 385 Mass. 555, 567 (1982); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 757 (1977). Further, under G. L. c. 190B, upon a finding of incapacity, the probate court is required to [‘]exercise [its] authority . . . so as 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). Thus, full or plenary guardianship is to be the exception, rather than the rule. To that end, counsel must ensure that, in those cases in which his or her client is found to be incapacitated, the guardian’s authority is strictly tailored to the specific decision-making needs of the client.”
The CPCS guidelines permit counsel to stipulate to a client’s incapacity in exceptional circumstances. This is not a case in which L.H.’s life was at risk or in which she faced some other irreversible loss so as to bring it within the exception.
Guideline 12 states as follows: “During the hearing the attorney shall act as a zealous advocate for the client, insuring that proper procedures are followed and that the client’s interests are well represented. To that end, the attorney shall: (a) file any and all appropriate motions and legal memoranda, including but not limited to motions regarding the assertion of privileges and confidential relationships, and the admission, exclusion or limitation of evidence; (b) present and cross-examine witnesses, and provide evidence in support of the client’s position; (c) make any and all appropriate evidentiary objections and offers of proof, so as to preserve the record on appeal; and (d) take any and all other necessary and appropriate actions to advocate for the client’s interests.”
“Thereafter, the judge made detailed findings and rulings that include a finding that L.H. “is not capable of caring for herself by reason of mental illness” and is “not competent to make informed decisions” regarding her treatment with antipsychotic medications, and that her substituted judgment would be to choose the treatment plan calling for the administration of antipsychotics. The judge signed orders implementing the treatment plan and appointing Thomas B. Concannon as the permanent Rogers monitor. The Rogers order was due to expire on December 6, 2010. See G. L. c. 190B, § 5-306A(c) (requiring annual review of Rogers order). Following a hearing conducted on September 1, 2011, the Rogers order was reinstated and extended. The treatment plan, including the administration of antipsychotic medication by injection, remains in effect. Thus, this case is not moot.
L.H.’s counsel also failed to recognize the distinction between a “definí*733live diagnosis” and an “initial impression.” Commonwealth v. Waite, 422 Mass. 792, 804 (1996).
In addition, L.H.’s counsel failed to move for a directed finding at the close of the evidence, thus precluding appellate review of the sufficiency of the evidence. See Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125 (1986).
This is not a case like Care & Protection of Georgette, 439 Mass, at 34-35, where the court agreed with the Appeals Court’s reasoning that, even with counsel’s failings, the evidence of parental unfitness was so strong that it was “implausible that the most zealous and impassioned” advocacy would have made any difference.
More specifically, I believe we should vacate the order of guardianship, the orders establishing a treatment plan authorizing treatment by means of anti-psychotic medications, and the appointment of a permanent guardian and Rogers monitor. Furthermore, I believe the case should be remanded to the Probate and Family Court for the appointment of new counsel and, if the judge deems it advisable, a new temporary guardian for L.H.