14 Mass. App. Ct. 685 | Mass. App. Ct. | 1982
These are two appeals from decisions of a Worcester County probate judge appointing John W. Spillane, a Worcester attorney, first as temporary and later as permanent, guardian of Miriam Shaw (Miss Shaw). The case began when the New England Merchants National Bank (bank) petitioned to be appointed conservator of Miss Shaw’s property. See G. L. c. 201, § 16. The judge appointed Mr. Spillane, a lawyer with offices in Worcester, as guardian ad litem to represent the interests of Miss Shaw on the petition. Subsequently, Mr. Spillane assented to the petition of the bank for the appointment of it as conservator. On December 4, 1980, however, the judge, on his own motion, appointed Mr. Spillane as Miss Shaw’s temporary guardian.
Subsequently, a guardianship proceeding was commenced on December 31, 1980, by Howland Warren, Ignatius Sargent and Keyo Russell
We must first dispose of an issue that arose during the course of the appeals. After the court heard oral arguments in the case, Miss Shaw died. As a result of her death, there is no continuing issue as to the appropriate person or entity to serve as guardian. Mr. Spillane has moved to dismiss the appeals as moot. The bank and the petitioners contend that, regardless of the death of Miss Shaw, the court should issue a decision. For reasons that will appear shortly, we agree with the bank and the petitioners, and deny Mr. Spillane’s motion.
One of the questions raised by the appeals is the propriety of the appointment of a person, as temporary or permanent guardian, whose only qualification for those positions, according to the record before us, is that he is a member of the local Bar. Therefore, this matter is of public importance, especially in view of the number of guardianship petitions that are brought in Probate Courts on behalf of elderly or infirm persons who, like Miss Shaw, may not survive the period of time necessary to obtain appellate review of a decision by a probate judge appointing a person or entity as a guardian. In addition, an appointment of a temporary guardian expires after ninety days, see Rule 29B of the Probate Court (1975), a period too short to permit effective review. On several occasions when the question of mootness has been raised, our appellate courts have elected to render decisions on matters of public importance which are likely to recur but would otherwise evade review. Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271,
We summarize the facts. The facts are drawn from the hearing relative to the guardianship proceeding and are not in dispute. At the time of the guardianship proceeding hearing, Miss Shaw was ninety-two years old, and, as a result of a series of strokes, was confined to her bed at her home in Harvard. Prior to her illness she had led an active, fruitful life. Born to wealth, Miss Shaw had had business and fiduciary relationships with the bank and one of its corporate predecessors since 1920. The bank managed her agency account which was worth approximately $350,000 at the time of the hearing. In addition, Miss Shaw had appointed the bank as trustee of an irrevocable trust which had been established by her in 1955 for the benefit of ten annuitants. Miss Shaw’s total annual income was approximately $378,000 and was obtained in large part from three testamentary trusts, two of which had been established by her grandparents and were managed in part by the bank as cotrustee.
In 1946, Miss Shaw had executed a general power of attorney which authorized one of the bank’s corporate predecessors to act on her behalf with respect to her property and financial affairs. Until the temporary guardian was appointed in 1980, the bank had used the power of attorney to provide for Miss Shaw’s needs.
Beginning in 1978, Miss Shaw suffered a series of strokes which left her totally incapacitated. She was confined to
1. The temporary guardian issue. On December 4, 1980, the judge, acting on his own motion, appointed Mr. Spillane as temporary guardian of Miss Shaw. On February 17, 1981, the bank and the petitioners filed a motion to discharge the temporary guardian. On April 27, 1981, the judge denied the motion without a hearing. On appeal, the bank and the petitioners argue that the judge lacked authority to appoint a temporary guardian and that, in any event, Mr. Spillane should have been discharged because his actions as temporary guardian were inappropriate and in excess of his authority.
a. The authority of the judge to appoint a temporary guardian. All the parties, including Mr. Spillane, agree that the judge purported to act under G. L. c. 201, § 14, as amended through St. 1977, c. 567, § 3, in appointing Mr. Spillane as temporary guardian. That statute establishes
Because the probate judges are sensitive to the importance of any decision relative to the appointment of a temporary guardian, they have adopted Rule 29B of the Probate Court (1975) which establishes additional procedural requirements. The rule states, in pertinent part, that “[n]o temporary appointment of a guardian or conservator will be allowed unless a permanent petition has been filed and is being prosecuted.” At the time of the appointment of the temporary guardian, no petition for the appointment of a permanent guardian had been filed. At the very least, it was premature of the judge to appoint a temporary guardian before any person sought the appointment of a permanent guardian.
Because of the failure of the judge to make the critical finding that the welfare of Miss Shaw required the immedi
b. The actions of Mr. Spillane as temporary guardian. After holding the appointment of the temporary guardian was error, we would not, in the usual course, examine the conduct of the temporary guardian during his flawed appointment. In this instance however, an examination of Mr. Spillane’s conduct as temporary guardian is relevant to the propriety of his appointment as permanent guardian. The bank and the petitioners claim that Mr. Spillane’s actions as temporary guardian were inappropriate and unauthorized and that a cursory examination by the judge of the two reports submitted by Mr. Spillane in his role as temporary guardian would have revealed that Mr. Spillane has far exceeded the limited duties imposed on him by the judge’s order.
In the order appointing him as temporary guardian, Mr. Spillane was instructed to report on the physical and mental condition of Miss Shaw. He was authorized “to employ necessary medical assistance to inform [the] [c]ourt whether . . . [Miss] Shaw is able to give informed consent concerning her assets and her person.” Mr. Spillane was further instructed to prepare for the court “a résumé of her finances and of the present living conditions.” Following the order of the judge, Mr. Spillane obtained the services of a medical doctor who submitted a detailed report in regard to the ability of Miss Shaw to give her informed consent concerning her assets and her person. He also prepared a resume of Miss Shaw’s finances and of her living conditions. These actions were in accordance with the order of the judge.
Other actions of Mr. Spillane as temporary guardian, however, exceeded the limits set on him by the judge’s order. He compiled a genealogical history of the family of Miss Shaw and included it in one of his temporary guardian’s
No order of the judge authorized Mr. Spillane to undertake any of those activities. The actions of Mr. Spillane were contained in the two reports that he submitted as temporary guardian. The reports were exhibits at the hearing on the petition to appoint permanent guardians. At the very minimum, the reports should have alerted the judge that Mr. Spillane was mistaken in regard to his role with respect to the affairs of Miss Shaw; and, therefore, the judge should have considered Mr. Spillane’s actions as temporary guardian in determining whether he was a suitable person to be appointed as permanent guardian.
2. The appointment of the permanent guardian. On December 31, 1980, the petitioners moved for the appointments of the bank as the permanent guardian of Miss Shaw’s property and Mrs. Brown as the permanent guardian of the person of Miss Shaw.
A probate judge has substantial discretion in guardianship matters. Gloucester v. Page, 105 Mass. 231, 232 (1870). Guardianship of Bassett, 7 Mass. App. Ct. 56, 64 (1979). The power is not without limits, and the court must exercise its power with a view to the best interests of the ward. See King v. Dolan, 255 Mass. 236, 237 (1926). In addition, the person appointed must be found to be suitable to serve as guardian. See Harding v. Brown, 227 Mass. 77, 86 (1917); Curran v. Carroll, 318 Mass. 780 (1945).
At the hearing the bank and the petitioners introduced substantial evidence as to the suitability of Mrs. Brown and the bank to serve as permanent guardians. The uncontradicted evidence was that Mrs. Brown, a graduate of Smith College and mother of six children, had been a friend and neighbor of Miss Shaw for several years. Two affidavits were filed and received in evidence by the judge. In the first affidavit, the minister of the church that Mrs. Brown and Miss Shaw attended stated that it was his belief that “Miss Shaw would desire the appointment of a trusted friend and advisor” and that “Mrs. Brown would be an excellent choice.” The affidavit further recited that Mrs. Brown had maintained a “constant and faithful relationship with Miss Shaw for many years.” The second affidavit was of a former selectman of Harvard, and he also attested to the close relationship between Miss Shaw and Mrs. Brown. Mrs. Brown testified that she would consider it an honor to be appointed permanent guardian of Miss Shaw’s person
As already noted, Miss Shaw had been rendered mute by a series of strokes. When, as here, a ward is incapable of expressing an opinion or preference as to a guardian, a judge should try to ascertain as best as he can what the ward’s desires would be. Cf. Doe v. Doe, 377 Mass. 272, 278-279 (1979). On the record, Miss Shaw’s presumptive heirs, her personal physician for many years, her minister, and a person who had lived in her home for years, all urged or assented to the appointment of Mrs. Brown, a friend and neighbor of Miss Shaw. In contrast, Mr. Spillane was a stranger to Miss Shaw before his appointments in these cases. No one petitioned or argued for his appointment as permanent guardian. The record is silent as to any particular expertise that Mr. Spillane possessed relative to the handling of affairs such as those of Miss Shaw. To the contrary, the record indicates that some of Mr. Spillane’s actions during his brief tenure as temporary guardian were misguided and inappropriate.
In sum, implicit in the judge’s appointment of Mr. Spillane is a finding that Mr. Spillane was a suitable person to be appointed permanent guardian. There was nothing in the record, however, that justified such a finding. We hold that where a judge appoints a guardian under G. L. c. 201, §§ 6 & 6A, and that person is not requested by the petitioners, there must be presented on the record evidence as to that person’s suitability. Further, the judge should state with particularity his reasons for the appointment of the substitute person.
So ordered.
No action was ever taken on the bank’s conservatorship petition.
The petitioners identified in n.4 hereof joined in the motion of the bank to discharge the temporary guardian, and they also have appealed from the judge’s decision.
Howland Warren was Miss Shaw’s cousin and presumptive heir. Ignatius Sargent was a friend of Miss Shaw who had lived with his mother in Miss Shaw’s home for a number of years. Keyo Russell was a friend and neighbor. Miss Shaw’s other presumptive heirs, Richard Warren and Mary Warren Murphy, both cousins of Miss Shaw, assented to the proposed guardianship.
The bank and the petitioners filed motions to consolidate these two cases on appeal. A single justice allowed the bank and the petitioners to file a joint brief, ordered them to file separate but jointly bound appendices, and deferred the motion to consolidate the panel of Justices assigned to determine the appeals. We allow the motion.
At the time of the hearing, the two trusts managed by the bank were valued at $7,000,000. The third trust, which did not involve the bank, was valued at approximately $200,000.
Mr. Spillane received $1,000 for his labors as guardian ad litem. The record does not disclose what compensation he may have sought for his efforts as temporary or as permanent guardian.
The petition contained the phrase, “or some other suitable person,” after the bank’s and Mrs. Brown’s names.
There also was substantial evidence as to the suitability of the bank to be appointed permanent guardian of Miss Shaw’s property. We do not recite that evidence, as the judge found that the bank had handled Miss Shaw’s affairs satisfactorily and, in any event, we vacate the judge’s appointment of Mr. Spillane as permanent guardian.