In re Guardianship Columbia, SJC–12390

• Decision Date: 11 May 2018
• Docket Number: SJC–12390
• Parties: GUARDIANSHIP OF D.C.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 516

GUARDIANSHIP OF D.C.

SJC–12390

Supreme Judicial Court of Massachusetts, Norfolk..

Argued January 10, 2018.
Decided May 11, 2018.

Michael C. Boyne, Waltham, (Jessica L. Deratzian also present) for the hospital.

Karen Owen Talley, Committee for Public Counsel Services, for D.C.

Martin W. Healy, Boston, Thomas J. Carey, Jr., Hingham, John J. Ford, Lynn, Mark A. Leahy, Quincy, Edward Notis–McConarty, Boston, Jerry Cohen, Boston & Wynn A. Gerhard, Boston, for Martin W. Healy & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

479 Mass. 517

The issue presented in this case is whether a Probate and Family Court judge has the legal authority to allow a hospital's request to transfer a patient to a skilled nursing facility where the judge did not find the patient to be an "incapacitated person," as defined in G. L. c. 190B, § 5–101 (9), of the Massachusetts Uniform Probate Code (code), and therefore did not appoint a guardian for the patient. We conclude that a judge does not have this legal authority. Where a hospital patient refuses to consent to be transferred to a nursing facility, a judge may order the patient to be admitted to a nursing facility under the code only where the judge finds the patient to be an incapacitated person, and makes the other findings necessary to appoint a guardian under G. L. c. 190B, § 5–306 (b ), and then grants the guardian specific authority under G. L. c. 190B, § 5–309 (g ), to admit the incapacitated person to a nursing facility after finding that such admission is in the incapacitated person's best interest.¹

Background. On January 4, 2016, seventy-nine year old D.C. was admitted to a hospital in Cambridge after suffering a fracture of her left hip. During the first month of her hospitalization, D.C. also presented with acute renal failure, pancreatitis, and cardiac issues, and she underwent both a coronary bypass and a mechanical heart valve replacement. D.C. refused to have hip surgery at the time and rejected all medications, including anticoagulants necessitated by her mechanical heart valve.

The hospital's initial verified petition for appointment of a guardian for an incapacitated person and a motion for appointment of a temporary guardian were filed on January 26, 2016. The

479 Mass. 518

hospital alleged that D.C. was mentally incapacitated and unable to communicate; it also sought "specific [c]ourt authorization" to admit her to a nursing facility and, because a substitute judgment determination might be required, to "consent or withhold consent for the entry of a [Do Not Resuscitate, Do Not Intubate, and Comfort Measures Only] order." The judge granted the petition for temporary guardianship on February 1, 2016, and D.C.'s attorney was appointed as her temporary guardian.² The temporary guardianship was extended on March 2 after a hearing, but lapsed on June 6, after the judge declined to extend the guardianship.

The hospital filed another motion for appointment of a temporary guardianship in July, 2016, asserting that D.C. was an incapacitated person in need of guardianship based on her insistent refusal of medical care. The medical certificate filed with the petition provided, among other things, that D.C. "has consistently demonstrated the inability to utilize the information given to her about her illness and [the hospital's] proposed treatment options," that her decisions are "putting her health and life in danger," and that she "lacks [the] capacity to make medical decisions at this time."

On September 26, 2016, a different judge conducted a bench trial at the hospital on the petition for guardianship. In a written decision dated November 15, 2016, the judge concluded that the hospital had failed to meet its burden of proving by a preponderance of the evidence that D.C. "is an incapacitated person within the meaning of G. L. c. 190B, § 5–101 (9) [and] that she is incapable of making decisions about medical treatment." He determined that, "although she may be demanding, difficult, obstreperous and plainly refused to assist or participate with various medical care personnel at [the] hospital, [D.C.] has the capacity to discern her medical condition and needs with respect to anticoagulant medications and hip replacement surgery, and has made [an] informed decision not to participate or engage with the [h]ospital personnel, understanding that her refusal of the

479 Mass. 519

medication may be seriously harmful or lead to her death, and further understanding that she requires a hip replacement which cannot proceed without her taking those medications." He therefore dismissed the hospital's petition to appoint a guardian for D.C.

However, the judge allowed the hospital's request that D.C. be transferred to a skilled nursing facility, finding that, notwithstanding D.C.'s refusal to take medications, her current medical condition "no longer requires an acute level of care and her medical needs can be met at a skilled ... nursing facility."

In November, 2016, the hospital moved for clarification of the court's judgment. During a hearing on the hospital's motion, the judge reiterated his finding that the hospital had failed to prove that D.C. was an incapacitated person and declared that, having so found, he could not order any guardianship, even a limited guardianship, "solely for the purpose of admitting [D.C.] to a skilled nursing facility." He also declined the hospital's request to issue an order regarding the hospital's authority to effectuate D.C.'s transfer to a skilled nursing facility, but he did not revoke his allowance of the hospital's request that she be transferred. Instead, on his own initiative, he reported three questions of law to the Appeals Court:

1. Must a guardian based on a finding of mental incapacity first be appointed over the respondent to authorize petitioner to then admit the respondent to a nursing facility?

2. Does the Probate and Family Court have the authority to appoint a "limited guardian," over a person not proven to be mentally incapacitated, solely for the purpose of admitting the respondent to a nursing facility?

3. Does the Probate and Family Court have the authority to order a not mentally incapacitated hospital patient to be transferred to a nursing facility?

The hospital filed a notice of appeal from the judge's dismissal of the guardianship petition, and moved to consolidate that appeal with the reported matter. The Appeals Court allowed the motion to consolidate, and we transferred the consolidated case to this court on our own motion.

Before oral argument on the appeal, the hospital filed a new petition for guardianship, which the judge allowed. On November 8, 2017, the judge found D.C. to be an incapacitated person,

479 Mass. 520

appointed a general guardian for her, and specifically granted the guardian the authority to admit D.C. to a nursing facility after finding that such admission was in D.C.'s best interest.

Discussion. 1. Mootness. The judge's more recent allowance of the hospital's guardianship petition renders moot the appeal from the judge's dismissal of the earlier petition. But an exception to the mootness doctrine exists "[w]here a case is ‘capable of repetition, yet evading review,’ " which may render dismissal on mootness grounds inappropriate. Seney v. Morhy, 467 Mass. 58, 61, 3 N.E.3d 577 (2014), quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298, 327 N.E.2d 885 (1975). "In such circumstances, we do not hesitate to reach the merits of cases that no longer involve a live dispute so as to further the public interest." Aime v. Commonwealth, 414 Mass. 667, 670, 611 N.E.2d 204 (1993). Here, we decline to reach the merits of the hospital's appeal from the judge's dismissal of the earlier guardianship petition inasmuch as it claims that the judge was clearly erroneous in finding that D.C. was not an incapacitated person. That finding, based on D.C.'s physical and mental condition at the time of the earlier hearing, is unique to her, and those specific factual circumstances are not "capable of repetition" in this or other cases.

However, we shall address the matter reported by the judge, which concerns the lawfulness of allowing a hospital to transfer a patient involuntarily to a skilled nursing facility in the absence of a guardianship. That particular issue is "capable of repetition and, given the short time periods in which guardianship matters are often decided and the fluidity of the proceedings even...