We address an issue of first impression that was left unanswered by the Supreme Judicial Court in Guardianship of Hocker,
Background. A petition for guardianship of the person of Marsha Zaltman (hereinafter Ms. Zaltman or the ward) was brought by the petitioners, Anne LaFleur and Elizabeth MacLellan,
A petition for permanent guardianship was then filed by the petitioners, and a hearing was held on February 1, 2005. In support of the guardianship, the petitioners submitted the affidavit as to competency and proposed treatment plan of Dr. Suzanne Cullinane, dated January 11, 2005. Dr. Cullinane’s affidavit was the only medical evidence presented at the hearing. Attorney Eacmen “was present,” although a question has been raised regarding the effectiveness of her representation at that hearing.
After the surgery, Ms. Zaltman returned to her home, where she required outpatient care. That care was provided by Joanne Wooldridge of PrimeCare from November, 2004, to April, 2005, when Attorney Moore terminated the services. Sometime in June, 2005, Ms. Zaltman’s physicians (Dr. Cullinane and Dr. Anthony Erdmann) informed her (so she averred in her affidavit) that she no longer needed a guardian. Ms. Zaltman thereupon decided to petition for discharge of the guardianship and retained Attorney Laura A. Sanford to represent her. On June 28, 2005, Attorney Sanford filed a petition for discharge of the guardian and termination of the guardianship on behalf of Ms. Zaltman, asserting that Ms. Zaltman was now capable of managing her own affairs. On August 12, 2005, Attorney Sanford filed an emergency motion for outpatient care, which was being denied Ms. Zaltman by her guardian, and an emergency motion for discharge of the guardianship as it was no longer necessary by virtue of Ms. Zaltman’s then-present competence and conduct of the guardian detrimental to her well-being. Supporting the emergency motions was an affidavit from Dr. Cullinane, the same doctor on whose medical opinion the judge had relied at the permanent guardianship hearing.
In her affidavit, Dr. Cullinane concluded that, “It is my
Hearings on the emergency motions were scheduled for August 17, 2005. On August 12, 2005, counsel for the petitioners, Attorney William Carroll, filed a motion to strike the appearance of counsel (Attorney Sanford).
Upon Attorney Eacmen’s representation that she remained the ward’s lawyer, the judge stated, “Ms. Eacmen, you’re her representative. I expect that if there’s any reason to terminate the guardianship you will bring that forward.” No reference was made to Ms. Zaltman’s or Dr. Cullinane’s affidavit at any point during the hearing. To date, Attorney Eacmen has done nothing on Ms. Zaltman’s behalf to discharge the guardianship or the guardian, to reinstate PrimeCare’s services, to address the fact that the treatment plan expired as of May 17, 2005, or to seek periodic review of either the plan or the substituted judgment order.
On August 25, 2005, Attorney Sanford filed a motion for reconsideration of the August 17 order striking her appearance and again requested a hearing, specifically relying on a footnote in Guardianship of Hooker, supra at 716 n.14.
Discussion. Reversal is mandated in consequence of the second judge’s declining to act on the emergency motion for discharge of the guardianship, and allowing the motion to strike appearance of counsel, all without the benefit of an evidentiary hearing. The underlying problem is reflected in the judge’s pronouncement that “[t]he ward does not have the capacity to file anything.” The judge thereby denied the ward her right to petition for removal of the guardianship, a right explicitly provided for and protected by statute. See G. L. c. 201, § 13, as appearing in St. 1956, c. 314, § 5 (“The guardian of a mentally ill . . . person . . . may be discharged by the probate court, upon the application of the ward or otherwise, when it appears that the guardianship is no longer necessary . . . .”); G. L. c. 201, § 13A, as appearing in St. 1974, c. 845, § 8 (“A mentally ill person under guardianship . . . may file a petition for the removal of such guardian . . . .”); Guardianship of Roe,
Hocker,
Furthermore, in such cases a judge has an obligation that was not here discharged, that of personally ascertaining the ward’s desires and intentions. “An individual’s stated preference has traditionally been considered a ‘critical factor’ by courts in determining matters of guardianship. Guardianship of Roe, 383 Mass. [at 445]. See Allis v. Morton,
This general judicial obligation to consult the ward was heightened here by the ward’s own affidavit attesting to her regaining of competence and to her adverse, if not hostile, relations with both the appointed guardian and the appointed attorney, as well as the corroborating affidavit of the principal psychiatrist in the matter. Those submissions, reflecting not merely the existence of adversary proceedings and fiduciary conflict but also genuine questions regarding the ward’s competence, cried out for inquiry of the ward and further evidentiary investigation by the judge. The failure to do so constituted error. Contrast Hocker,
A third fundamental flaw was that the judge’s approach in the proceedings below appeared to assume that the ward’s condition was fixed and unchanging, notwithstanding the facts that there had been no periodic review of the substituted judgment and treatment plan orders (as should have been ordered but was not) and that the determination of Ms. Zaltman’s incapacity was “relatively remote in time,” having been made almost ten months before the August 17, 2005, hearing. Compare Guardianship of Pamela,
Simply because at an earlier point Ms. Zaltman had been found “incapable of taking care of herself by reason of mental illness” did not make a foregone conclusion, much less an established legal proposition, that she did not possess the competency necessary to select counsel. It is well settled that our law recognizes various levels of competency. See Talbot v. Chamberlain,
Similarly, as previously noted, supra, our courts have repeatedly held that a mentally ill person may still possess the faculties to have an informed opinion about her treatment. See Doe v. Doe, 377 Mass. 272, 278-279 (1979), quoting from Allis v. Morton,
In addition, the initial determination of Ms. Zaltman’s incompetency had been made over ten months before the hearing at issue (and the adjudication as to a permanent guardianship over six months earlier), and it is well established that a person’s competency can change over time. See Matter of Spring, 380 Mass, at 641 (recognition that the competency of even a profoundly disoriented ward might change over a nine-month period; however “remote . . . even a possibility of some change of circumstances might warrant reconsideration”); Guardianship of Pamela,
In this case, the lack of judicial recognition that the documents placed before her presented “a genuine question” as to the possibility of some change of circumstance and raised a “duty... to ascertain the fact” as to the ward’s competence, Gershaw v. Gershfield,
That the judge expressed her expectation at the August 17, 2005, hearing that Attorney Eacmen would bring a petition to discharge the guardianship “if” there was any reason to do so was, in the circumstances, not sufficient to protect the ward’s
Even if Attorney Eacmen continued to have authority to represent Ms. Zaltman after the Rogers proceeding and the finding of incompetency, in light of the high fiduciary nature of such a representation the judge should have, on the reconsideration motion, examined the attorney’s actual participation in the case to determine whether she adequately represented Ms. Zaltman’s interests — an exploration made more urgent by Ms. Zaltman’s serious charges that Attorney Eacmen failed to (1) inform her that she had a right to an independent evaluation; (2) call any witnesses on her behalf at the permanent guardianship hearing; (3) prepare her to testify; (4) inform her of her right to appeal the adverse decision; and (5) explain to her the ramifications of the decision or assist her in any way after that decision.
In sum, on these facts, the judge’s failure to hold a hearing at least to determine whether the ward was competent to retain an attorney to challenge the continuation of the guardianship constituted error of law that effectively gutted the protective provisions of G. L. c. 201, §§ 13 and 13A (if not, as argued by Ms. Zaltman, violated her due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of our Declaration of Rights, compare Towne v. Hubbard,
Contrary to the petitioners’ principal contention (and the judge’s sole legal reliance), the Supreme Judicial Court’s recent opinion in Guardianship of Hocker does not support the judge’s actions. Indeed, we view our decision as consistent with, and a logical and necessary extension of, Hocker. The court’s rationale in Hocker was grounded on the fact that there were no adversary proceedings pending between the guardian and the ward (an observation the court reiterated four separate times). The court held,
The question that the Supreme Judicial Court was not faced with in Hocker, as noted earlier, is squarely presented here. Consistently with Hocker, we hold that the integrity of the statutory process for protecting a ward’s rights in a guardianship requires that a nonindigent ward who has been adjudged incompetent to make her own medical decisions be given the opportunity to demonstrate that she is competent to select and retain counsel of her own choosing
Finally, we observe that our holding comports with the guarantees of equality set forth in art. 1 of our Declaration of Rights and recognized in our decisional law. An incompetent person, like all other individuals, is entitled to equality and
Consequently, we vacate the judge’s August 17, 2005, order that effectively denied the ward’s petitions for discharge of the guardianship, as well as the judge’s September 13, 2005, order denying the ward’s motion for reconsideration, and remand the case for the following proceedings. An evidentiary hearing must be held to determine whether Ms. Zaltman is competent to retain counsel to act on her behalf in challenging the guardianship and seeking removal of the present guardian. In connection with that evidentiary hearing, independent counsel must be appointed to represent Ms. Zaltman. If it is determined that Ms. Zaltman is competent to retain counsel, she may hire counsel of her choosing, including Attorney Sanford, to press her petitions. If Ms. Zaltman is determined not to be competent to retain counsel, independent counsel must be assigned to her (the selection of counsel to be in the judge’s discretion but exercised in light of this decision). Regardless of the outcome of that hearing, based upon the evidence of changed medical circumstances presented in the record, Ms. Zaltman shall be afforded, as soon as feasibly possible, an evidentiary hearing either on the basis of her petition to discharge the guardianship or as a periodic review of the substituted judgment and treatment plan orders, at which she should be represented by counsel (of her choosing or appointed by the court, as may be appropriate) and have the opportunity to present additional evidence as to her competency.
So ordered.
Notes
LaFleur and MacLellan are social workers employed by Massachusetts General Hospital, where Ms. Zaltman had been admitted for spine surgery. They filed the petition for her guardianship, pursuant to G. L. c. 201, § 6, as “two friends,” although nothing in the record indicates any actual friendship relationship with Ms. Zaltman before or after that petition. Contrast, e.g., G. L. c. 201, § 34 (and numerous other statutes), utilizing the more specific term of art, “next friend,” a status interchangeable with that of guardian ad litem, Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 4),
Ms. Zaltman had been diagnosed with somatization disorder (physical complaints that are not explained by reliable and objective medical diagnoses). She also has a history of chronic medical problems, including fibromyalgia, myofascial pain syndrome, and irritable bowel syndrome. Ms. Zaltman also suffered from progressive cervical stenosis and profound cervical degenerative disease. Doctors recommended that Ms. Zaltman undergo surgery but she refused or was unable to give her consent.
Specifically, Ms. Zaltman alleged the following in an August 24, 2005, affidavit submitted to the judge whose orders the instant appeal challenges:
“1. Attorney Rosemary [Eacmen] was present at the hearing of my permanent guardianship case on February 1, 2005.
“2.1 was present at the hearing.
“3. Atty. [Eacmen] did not tell me that I had a right to an independent evaluation. Atty. [Eacmen] did not call any witnesses on my behalf.
“4. Atty. [Eacmen] did not prepare me to testify.
“5. Atty. [Eacmen] spent less than a half hour with me the night before the hearing. She told me that if she motions with her hand it means not to say anything; that was the extent of my preparation. She did not explain the proceeding to me either before it or after it. She did not tell me I had a right to appeal the decision.
“6.1 was questioned by the attorney for the hospital in a way that misconstrued what had happened leading up to my hospitalization at [Massachusetts General Hospital], Atty. [Eacmen] did not defend me or say anything on my behalf, I was left there to hang myself. Atty. [Eacmen] said nothing in court that indicated she knew me and my situation. What she said was rote.
“7. Atty. [Eacmen] said she would come back to the hospital on the night of the hearing to explain what happened. She never came back or called me.
“8. It was recommended by [a Massachusetts General Hospital] staff person (Joanne Wooldridge) that I notify Atty. [Eacmen] when I was being discharged. I called Atty. [Eacmen] and she said that she had nothing further to do with me. “9. I do not want Attorney [Eacmen] to represent me in the petition to discharge my guardian, Kathleen Moore.
“10. I want attorney Laura Sanford to represent me.
“11. My doctors, Erdmann, and Cullinane, have told me that I do not need a guardian. I hired Laura Sanford to represent me after they told me this.”
In connection with Attorney Eacmen’s alleged failings, we note that she did not file a brief in this appeal and advised this court that she would neither present an oral argument nor appear.
The record does not indicate that Attorney Moore had any prior relationship to Ms. Zaltman. Ms. Zaltman has two siblings but is apparently estranged from them.
According to Dr. Cullinane, the guardian stated the following as her reasons for refusing to reinstate PrimeCare’s services: “[PrimeCare’s] service to Ms. Zaltman has been an expensive hand holding. Joanne Wooldridge is a ‘yes’ person and does whatever Ms. Zaltman wants. [PrimeCare’s] charges have been fraudulent because they charged for services they did not provide.” No evidence to support the guardian’s assertions appears in the record.
Attorney Sanford asserts that she did not receive notice of the motion to strike. No hearing date was set for that motion.
At the August 17, 2005, hearing, the petitioners’ attorney and the guardian vaguely alluded to plans that they “were trying to get a review together” regarding the treatment plan and the guardianship but did not explain the absence of any formal proceedings subsequent to the May 17, 2005, expiration of the treatment plan order.
The Supreme Judicial Court in Hooker noted,
“For example, the judge is required, by statute, to appoint counsel for an indigent ward when the guardian seeks to administer antipsychotic medication to the ward, G. L. c. 201, § 6(c), or to commit the ward to a mental health facility, G. L. c. 201, § 6(b). In addition, because the ward is one of the parties allowed to seek discharge of the guardianship if the ward is no longer incompetent, G. L. c. 201, § 13, or removal of the guardian for unsuitability, G. L. c. 201, § 13A, see Hillman v. Tinsley,355 Mass. 785 , 785 (1969), the ward may be entitled to counsel consistent with S.J.C. Rule 3:10, as appearing in416 Mass. 1306 (1993). The interest of a guardian and a ward are perhaps at their most adverse when a petition for removal is filed, and the alleged*684 failure of the guardian to fulfill her fiduciary duties to the ward is at issue. We need not and do not determine whether an incompetent ward could retain a lawyer himself in such circumstances. See J.H. Cross, R.D. Fleischner, & J.S.J. Elder, Guardian[ship] and Conservatorship in Massachusetts § 3.18A (Supp. 2002) (‘Inasmuch as the statute allows a ward to seek removal of his or her guardian, there should at least be a presumption that the ward has the capability to retain counsel for that purpose’).” (Emphasis supplied.)
The Hocker court did not quote the sentence that immediately follows the quoted passage in the main volume: “Courts should be skeptical of challenges by a guardian to the authority of ward’s counsel to appear and prosecute a petition for discharge.” Cross, Fleischner, & Elder, Guardianship and Conservatorship in Massachusetts § 3.18 (2000). The same passage appears in the 2005 supplement. Cross, Fleischner, & Elder, Guardianship and Conservatorship in Massachusetts § 3.18A (Supp. 2005).
Particularly pertinent were the changed opinion of the very physician, Dr. Cullinane, whose input had been decisive at the permanent guardianship hearing, and the evidence of friction between the ward and both the guardian and the appointed lawyer.
The judge’s abbreviated observations at the August 17, 2005, hearing make clear her static view of the ward’s situation and her refusal to acknowledge the troubling affidavits that were before her: “There has been a determination by this court that [the ward] lacks capacity”; “[t]he ward does not have the capacity to file anything”; “I expect that if there’s any reason to terminate the guardianship [the appointed attorney] will bring that forward.”
The appointed guardian was given no authority with respect to Ms. Zaltman’s estate.
In this connection, the judge’s disregard of Ms. Zaltman’s affidavit apparently reflected her overlooking the “not very stringent test of competence,” Commonwealth v. Echavarria,
The judge correctly realized at the August 17, 2005, hearing that there was no review date contained in the permanent decree and inquired of the petitioners and the guardian when the review would take place. The errors we discern are her not taking action on the materials submitted on behalf of the ward to order an evidentiary review or equivalent hearing, and seeming to acquiesce in vague representations that a review would somehow take place at some future time.
General Laws c. 201, § 6(c), as appearing in St. 1985, c. 525, § 1, does not permit a judge to authorize a ward’s treatment with antipsychotic medication “except after a hearing for the purpose of which counsel shall be provided for any indigent mentally ill person.” Counsel is also required to be assigned before a judge may authorize the admission or commitment of a mentally ill person. G. L. c. 201, § 6(b).
The Supreme Judicial Court has held that Mass.R.Prof.C. 1.14,
Cf. Matter of Moe,
Under the rationale of our holding, an indigent ward would be entitled to the appointment of independent counsel for that purpose pursuant to S.J.C. Rule 3:10, as amended,
We note two additional, critical, facts that distinguish Hocker from the present case. First, the judge in that case conducted an evidentiary hearing and made specific findings as to the ward’s ability to make legal decisions. Hocker,
As the Supreme Judicial Court stated in Saikewicz,