43 Mass. App. Ct. 493 | Mass. App. Ct. | 1997
This appeal presents an issue of first impression regarding the propriety of guardianship proceedings conducted in the Probate and Family Court. The subject of the proceedings, James A. Smith, is an eighty-three year old man who suffers from severe, advanced Parkinson’s Disease with dementia. He is the majority stockholder of C.K. Smith and Company,
In October, 1996, Marjorie and Judith Smith (petitioners), Smith’s wife and daughter, filed a petition for guardianship in the Probate Court in which they alleged that Smith was no longer able to “make or communicate informed decisions due to physical incapacity or illness.”
After the temporary guardianship was in place, a citation issued by the Probate Court was published, providing that any objections to the permanent appointment of Judith Smith and Linnehan must be filed by December 17, 1996. Acting pro se, Adams and Carl filed a timely objection. The petitioners subsequently filed a motion to strike the objection. The motion was scheduled for hearing on January 21, 1997.
The scheduled hearing was held on January 21, 1997. It consisted primarily of unsubstantiated allegations by counsel for the petitioners concerning improprieties committed by Adams over the course of his relationship with Smith, a pending lawsuit filed by Adams in Middlesex Superior Court,
In the midst of the discussion and without warning, the judge ended the hearing and informed the parties that they would have the opportunity to present their arguments fully in the pending Superior Court action. He subsequently allowed the petitioners’ motion to strike Adams’s and Carl’s objection and appointed Judith Smith and Linnehan as Smith’s permanent guardians. Although the judge was aware that Adams and Carl had filed a competing guardianship petition pursuant to their nomination in Smith’s power of attorney, no action was taken on the petition. Approximately two months later, the judge issued findings of fact and conclusions of law in support of his decision. He ruled that because Adams and Carl were both officers and directors of C.K. Smith, “[gjranting them a guardianship over [James Smith], who is the controlling interest holder of [the company], would create a conflict of interest and give [both men] an undue advantage” sufficient to disqualify them from serving as Smith’s guardians.
Adams and Carl appeal the judge’s decision on several
We vacate the decision of the Probate Court and remand the case for further proceedings consistent with this opinion.
Appointment of a Permanent Guardian Pursuant to G. L. c. 201B.
This appeal presents an issue of first impression in this Commonwealth: whether, when a principal has nominated his future guardian by durable power of attorney and protective fiduciary proceedings are thereafter commenced, the Massachusetts Uniform Durable Power of Attorney Act, G. L. c. 201B, mandates that the Probate Court make its appointment in accordance with the nomination in the absence of good cause or disqualification. We hold that G. L. c. 201B (Massachusetts Uniform Act) so requires.
James Smith executed a durable power of attorney in 1989, in which he appointed Adams and Carl his attorneys in fact and nominated them as his guardians in the event of future incapacity. He ratified the appointment in 1994.
Massachusetts adopted the Uniform Durable Power of Attorney Act (Uniform Act), with minor variations, in 1981. G. L. c. 201B, §§ 1-7, inserted by St. 1981, c. 276, § 2.
The petitioners maintain that this is not the case, however, because G. L. c. 20 IB must be read in conjunction with G. L. c. 201, which governs the appointment of temporary and permanent guardians and affords the Probate Court broad discretion in deciding such matters. New England Merchants Natl. Bank v. Spillane, 14 Mass. App. Ct. 685, 693 (1982). They argue that under c. 201, it is the best interests of the ward, rather than his previously expressed wishes, that should govern the appointment of a permanent guardian and that, accordingly, a court must always evaluate the suitability of a potential guardian, even one nominated pursuant to c. 201B. See New England Merchants Natl. Bank v. Spillane, supra at 693 (best interests of the ward must be considered by court appointing guardian pursuant to c. 201).
Legislative provisions “addressing similar subject matter are to be construed together to make ‘an harmonious whole consistent with the legislative purpose,’ and to avoid rendering any part of the legislation meaningless.” Healey v. Commissioner of Pub. Welfare, 414 Mass. 18, 25-26 (1992) (citation omitted), quoting from Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 613 (1997). Moreover, a court’s “equitable powers ‘to act in the best interests of a person under
We hold that when a principal has nominated his guardian by power of attorney pursuant to G. L. c. 201B, and protective proceedings are thereafter commenced, the Probate Court must, on proper petition, appoint the individual(s) nominated in the power, except for good cause or disqualification. G. L. c. 201B, § 3(b). We also conclude that G. L. c. 201B, § 3(b), places the burden of proof on anyone wishing to challenge the nominee’s appointment to produce competent evidence sufficient to establish such good cause or disqualification. Our decision is not only consistent with the express language of the statute, but should also discourage courts, often uninformed about an individual’s personal preferences and concerns in such proceedings, from appointing a guardian contrary to the individual’s clearly expressed wishes. See Uniform Durable Power of Attorney Act, supra § 3, Comment.
The Superior Court of Pennsylvania reached a similar result when asked to interpret that State’s version of the Uniform Act.
Evidence to Support Disqualification.
We next consider whether there was sufficient evidence presented at the January 21, 1997, hearing to support the judge’s conclusion that Adams and Carl were disqualified from serving as Smith’s guardians due to a conflict of interest. The petitioners argue that the evidence adduced at the hearing was sufficient to support disqualification. The “evidence” on which they rely consists primarily of statements made by counsel at the hearing and not substantiated through the testimony of witnesses or otherwise.
The parties strongly disagree on whether these statements constitute competent evidence upon which the probate judge properly relied in reaching his decision. See Harper v. Harper, 329 Mass. 85, 88 (1952) (uncontradicted statements of counsel may be taken as evidence). We need not reach the issue, however, because the judge apparently did not consider any of counsel’s representations in reaching his decision.
Before a court removes or rejects a fiduciary due to a conflict of interest, there must be evidence of some actual conflict. See, e.g., District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 174 (1994) (Probate Court has duty to remove executor where evidence establishes obvious unsuitability); Lindsey v. Ogden, 10 Mass. App. Ct. 142 (1980). There is no such evidence in this case. When competent, Smith placed great trust and confidence in Adams and Carl, as evidenced by his nomination of them as his guardians. He was also aware of their involvement in the operations of C.K. Smith. There was no inherent conflict of interest in these circumstances. Cf. Colbert v. Hennessey, 351 Mass. 131, 145 (1966) (executor’s position as director and president of company in which the estate owned a large percentage of stock was insufficient to create a conflict of interest); Lindsey v. Ogden, 10 Mass. App. Ct. at 149 (executor’s dual roles as executor and trustee of testamentary trust, alone, did not create a conflict). Indeed, we think it perfectly reasonable for Smith to have entrusted his sizeable interest in the company to individuals whom he knew and trusted and who were familiar with the company’s operations. See Colbert v. Hennessey, supra at 145. These, in fact, may well have been among the reasons which prompted him to nominate Adams and Carl. Ibid. Moreover, Adams’s and Carl’s objectives in both roles should reasonably be the profitable and efficient continuation of C.K. Smith’s operations. Their duties to Smith and the corporation would therefore be correlative rather than incompatible. Ibid.
We cannot say that the mere possibility that future conflicts might arise as a result of Adams’s and Carl’s dual roles is sufficient to disqualify them from serving as Smith’s guardians. Accordingly, we conclude that the probate judge should not have ignored the dictates of G. L. c. 201B, § 3(b), by appointing Judith Smith and James Linnehan as Smith’s permanent guardians in the absence of good cause or disqualification.
Because we have determined that Adams and Carl were to be appointed guardians pursuant to the mandate of G. L. c. 20IB, § 3(6), we also hold that they had standing to object to the appointment of Judith Smith and Linnehan as Smith’s permanent guardians, and that they were entitled to notice of any hearing to determine permanent guardianship and an opportunity to present- evidence at the hearing. In re Sylvester, 409 Pa. Super, at 454.
Although G. L. c. 201 does not expressly include Adams and Carl among the class of individuals entitled to notice in matters of guardianship,
We also conclude that Adams’s and Carl’s nomination afforded them standing to object to the permanent appointment of Judith Smith and Linnehan. They would undoubtedly be entitled to petition for the removal of Smith’s guardians pursuant to
We reverse the decree appointing Judith Smith and James F. Linnehan as the permanent guardians of James A. Smith, vacate the order granting the petitioners’ motion to strike the objections of Adams and Carl, and remand the case for an evidentiary hearing on the appointment of Adams and Carl as James Smith’s permanent guardians. At the hearing, the burden will be on any person objecting to the appointment to present competent evidence to establish good cause or disqualification.
So ordered.
General Laws c. 201B, § 1(a), as inserted by St. 1981, c. 276, § 2, provides: “A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact and the writing contains the words, ‘This power of attorney shall not be affected by subsequent disability or incapacity of the principal,’ or ‘This power of attorney shall become effective upon the disability or incapacity of the principal,’ or similar words showing the intent of the principal that the authority conferred shall continue notwithstanding the subsequent disability or incapacity of the principal.”
The document executed by Smith provides, “This power of attorney and the powers herein granted . . . shall continue until revoked by me in writing and shall not be affected by my subsequent disability or incapacity.”
Adams was president and a director of C.K. Smith, and Carl was clerk and a director of the company.
Smith’s incapacity is not at issue on appeal.
Adams and Carl received notice of the hearing on the motion to strike their objection, but were unaware that the permanent appointment of Judith Smith and Linnehan was scheduled for hearing on the same date.
It is unclear whether the petitioners were aware of the existence of the power of attorney prior to December 17.
The complaint filed against Judith Smith and Linnehan sought Judith’s removal as James Smith’s temporary guardian, and alleged that she abused her position for her own benefit and to the detriment of her father and C.K. Smith. No claim of wrongdoing was brought against Linnehan, and the sole basis for his involvement in the case appears to have been his status as a necessary party under Mass.R.Civ.P. 19(a)(2), 365 Mass. 765 (1974).
Adams’s attorney requested to have his client testify, but the judge declined to hear the testimony. The record is unclear as to the exact subject of the proposed testimony.
The petitioners concede that Adams and Carl were not given notice that the appointment of Smith’s permanent guardian would be determined at the January 21 hearing.
The petitioners refuse to “admit the validity of the durable power of attorney or the subsequent confirmation.” However, they offer no reasoned basis
To date, twenty-seven other States, the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. See Uniform Durable Power of Attorney Act, 8A U.L.A. 48 (Supp. 1997).
The operative language of the provision construed in In re Sylvester, supra, is identical to G. L. c. 201B, § 3(b).
The allegations included charges that Adams was particularly unsuitable to serve as Smith’s guardian, due to alleged illegal and immoral activities regarding the operations of C.K. Smith and various personal and business ventures in which Adams and Smith were involved. The petitioners also maintained that Adams’s status as the option holder of Smith’s stock would prevent him from faithfully discharging his duties as Smith’s guardian. Compare Cogswell v. Hall, 183 Mass. 575 (1903) (one trying to enforce a claim against an estate is improper person to act as executor).
Indeed, allegations made against Judith Smith during the hearing, if substantiated, could have been sufficient to disqualify her from serving as her father’s guardian. Specifically, counsel for Adams and Carl alleged that Judith Smith used her position as temporary guardian to remove Adams from his position as director of C.K. Smith and subsequently appointed herself as treasurer in an attempt to advance her own interests while frustrating her father’s business plan and creating disruption and chaos within the company. See Colbert v. Hennessey, 351 Mass. 131, 145 (1966) (distinguishing situation
General Laws c. 201, § 7, as amended by St. 1974, c. 845, § 5, provides, in relevant part:
“No appointment shall be made without . . . notice [of the time and place appointed for the hearing] to the heirs apparent or presumptive of the alleged mentally ill or mentally retarded person, including the husband or wife, if any, as the court may order.”
General Laws c. 201, § 13A, incorporating by reference § 6(a), as appearing in St. 1985, c. 525, § 1, provides that “two or more relatives or friends” of the ward may petition for a guardian’s removal.
After their appointment, Smith’s temporary guardians revoked the durable power of attorney with respect to Adams only. We conclude that the revocation did not deprive Adams of standing.