31 N.E.3d 1159
Mass. App. Ct.2015Background
- Rose Petriello (≈88) lived for decades with Albert Indresano Sr.; after his death she lived at 51 Smith Street, a trust property, but alleged family members (Albert and Joseph Indresano) interfered with her finances, privacy, and belongings.
- After a 2013 hospitalization and rehab, Petriello moved to assisted living (Waterstone). She executed a new health care proxy (naming Higgins‑Sullivan) and, on June 17, 2013, a durable power of attorney (POA) giving Higgins‑Sullivan broad authority.
- Higgins‑Sullivan (attorney‑in‑fact) alleged repeated abusive, belittling, and intrusive conduct by Albert and Joseph at Petriello’s home and at Waterstone; one incident involved someone taking Petriello’s phone while others yelled, prompting Higgins‑Sullivan to call police.
- Petriello later became psychiatrically incapacitated; Dr. Evans invoked the health care proxy, advised Higgins‑Sullivan to seek a harassment order, and determined Petriello lacked capacity.
- On July 29, 2013, ex parte harassment prevention orders under G. L. c. 258E were issued against Albert and Joseph; after a hearing the judge extended the orders for one year.
- Defendants appealed, arguing Higgins‑Sullivan lacked standing under the POA to seek c. 258E relief and that the evidence was insufficient to show three willful and malicious acts causing fear/intimidation/abuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek c. 258E order under POA | POA granted Higgins‑Sullivan broad authority to act for Petriello, including matters involving the Indresanos; consultation requirement was satisfied | POA is not a proper vehicle for seeking harassment orders; guardian ad litem was required | Court held POA gave Higgins‑Sullivan standing; acts by attorney‑in‑fact bind an incapacitated principal under G. L. c. 190B §5‑502 |
| Sufficiency of evidence for c. 258E order | Testimony and agency findings showed ongoing emotional/physical harm and interference, including at least one conceded abusive act | Evidence was vague, generalized; record lacked proof of three specific willful and malicious acts by these defendants | Court vacated orders for insufficient evidence: record fails to show the three specific acts required by c. 258E and who committed them |
| Applicability of First Amendment limits (speech) | Alleged statements (e.g., false accusation of abortion) contributed to harassment and caused distress | Words alone, without context, may be protected speech; must be unprotected category (fighting words / true threats) to support c. 258E | Court explained speech claims require showing unprotected category or that words were part of a larger malicious course; record lacked that showing |
| Distinction from c. 209A relief | Plaintiff emphasized severity of harm and proximity of defendants; c. 209A might cover abuse causing physical harm | Defendants noted different statutory standards and that c. 258E requires three acts | Court observed c. 209A standards differ and might reach some conduct, but c. 258E has specific three‑act requirement—insufficient record for c. 258E relief |
Key Cases Cited
- McQuade v. Springfield Safe Deposit & Trust Co., 333 Mass. 229 (discussion of interpreting powers of attorney)
- Grabowski v. Bank of Boston, 997 F. Supp. 111 (D. Mass.) (powers of attorney generally interpreted like contracts)
- Seney v. Morhy, 467 Mass. 58 (defines c. 258E elements and three‑act requirement)
- O'Brien v. Borowski, 461 Mass. 415 (describes "wilful and malicious" standard and unprotected speech categories)
- Commonwealth v. Johnson, 470 Mass. 300 (speech integral to harassment; false postings and threats can be unprotected)
- Gagnon v. Coombs, 39 Mass. App. Ct. 144 (consultation requirement for attorney‑in‑fact under POA)