In re Guardianship of Zaltman

Decision Date06 March 2006
Docket NumberNo. 05-P-1611.,05-P-1611.
Citation843 N.E.2d 663,65 Mass. App. Ct. 678
PartiesGUARDIANSHIP OF ZALTMAN.
CourtAppeals Court of Massachusetts

Laura A. Sanford, Bedford, for Marsha Zaltman.

Paige Scott Reed, Boston, for Anne LaFleur & another.

Present: ARMSTRONG, C.J., LAURENCE, & GRASSO, JJ.1

LAURENCE, J.

We address an issue of first impression that was left unanswered by the Supreme Judicial Court in Guardianship of Hocker, 439 Mass. 709, 716 n. 14, 791 N.E.2d 302 (2003) (see note 9, infra): May a nonindigent ward who has been adjudged incapable of making her own medical decisions retain a lawyer to represent her in a petition under G.L. c. 201, §§ 13 and 13A, seeking to discharge her guardianship and remove her guardian on the grounds that the guardianship is no longer necessary because of changed medical circumstances and the guardian is not fulfilling her fiduciary duties? We hold that, in the circumstances of this case, the ward is entitled to an evidentiary hearing to determine whether she has the capacity to retain counsel for that purpose; if it is determined that she does not have such capacity, new, independent counsel must be appointed to represent her zealously in those statutory proceedings.

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,2 on September 7, 2004. The petition indicated that the basis for the guardianship was mental illness rendering Ms. Zaltman incapable of taking care of herself and making her own medical decisions, and requested court authorization to treat her with antipsychotic medication.3 On September 8, 2004, a Probate Court judge appointed Attorney Rosemary Eacmen to represent Ms. Zaltman (who is not indigent) for the requisite Rogers proceeding. See Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983). On October 27, 2004, the judge allowed a temporary guardianship of Ms. Zaltman and issued an order authorizing the hospital to perform spine surgery and administer antipsychotic medication to her. Ms. Zaltman underwent surgery for cervical stenosis on November 11, 2004.

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.4 The Probate Court judge who had authorized the temporary guardianship determined (specifically relying on Dr. Cullinane's submissions) that Ms. Zaltman was "incapable of taking care of herself by reason of mental illness" and "not capable of making informed decisions regarding her medical treatment" and, applying the requisite substituted judgment analysis (see Rogers, supra at 499-507, 458 N.E.2d 308), determined that, if competent, Ms. Zaltman would choose to take the antipsychotic medication recommended by her physicians. Attorney Kathleen Moore was appointed permanent guardian of Ms. Zaltman's person and had the authority to monitor the administration of antipsychotic drugs.5 The court approved a treatment plan, to expire May 17, 2005, including such drugs. Neither the substituted judgment order nor the treatment plan order provided for periodic review of Ms. Zaltman's circumstances. See Guardianship of Weedon, 409 Mass. 196, 200-202, 565 N.E.2d 432 (1991).

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 opinion to a reasonable degree of medical certainty that Ms. Zaltman is [now] competent to make informed decisions regarding her care and treatment. She is rational and competent. She does not suffer from a major depressive disorder. She is organized in her thoughts and able to discuss and weigh the risks and benefits of her current treatment and outpatient care. Ms. Zaltman has an astute understanding of what is going on around her." Dr. Cullinane also observed that Dr. Erdmannn (whom Ms. Zaltman had seen several times for psychiatric evaluation and treatment) "has been of the opinion that Ms. Zaltman is competent and does not need a guardian since he first met with her about two months ago ... [and] he has not changed his opinion." Dr. Cullinane also recommended that Ms. Zaltman work with Ms. Wooldridge of PrimeCare for outpatient care because the "alliance was clinically very beneficial for Ms. Zaltman." Dr. Cullinane stated that "Ms. Wooldridge has demonstrated her interest and involvement in Ms. Zaltman's case since the termination [of PrimeCare's services by the guardian] by staying in contact with Ms. Zaltman and with me up to the present time" and that "PrimeCare's services will provide the means for Ms. Zaltman to remain independent." The guardian, however, has refused to reinstate care from Ms. Wooldridge or PrimeCare.6

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).7 On August 17, 2005 the hearing was convened before a second Probate Court judge. Present were Attorneys Carroll (for the petitioners), Eacmen, and Sanford, as well as the guardian, Attorney Moore. Instead of addressing the scheduled emergency motions, however, the judge allowed the motion to strike appearance of counsel, citing Guardianship of Hocker, 439 Mass. 709, 791 N.E.2d 302, and stating several times that Ms. Zaltman, being under guardianship, "doesn't have the capacity" to hire an attorney, and adding that Ms. Zaltman "does not have the capacity to file anything." The judge cut off Attorney Sanford's attempt to present argument and denied her request for an evidentiary hearing.

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.8

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 Hocker, supra at 716 n. 14, 791 N.E.2d 302.9 Attached to the motion was an affidavit from Ms. Zaltman expressing her dissatisfaction with Attorney Eacmen's representation (see note 4, supra). In her affidavit, Ms. Zaltman stated, "I do not want Attorney [Eacmen] to represent me in the petition to discharge my guardian, Kathleen Moore.... I want attorney Laura Sanford to represent me." The motion for reconsideration was denied on September 13, 2005, without findings, a hearing, or an opposition.

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, 383 Mass. 415, 426, 421 N.E.2d 40 (1981) ("If an individual is erroneously subjected to guardianship, then G.L. c. 201, § 13A, allows such a ward to file a petition for the removal of his guardian").

Hocker, 439 Mass. at 716, 791 N.E.2d 302 & n. 14, upon which the judge relied, actually highlighted the importance of those fundamental rights of a mentally ill...

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    • October 29, 2019
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    ...to determine, whenever it is possible, the allegedly incapacitated person's “desires and intentions.” Guardianship of Zaltman, 65 Mass.App.Ct. 678, 685, 843 N.E.2d 663 (2006). In fact, the incapacitated person's personal preference is regarded as a “critical factor” in the judge's decision:......
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