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
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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
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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).
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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).
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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
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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.
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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.
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