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06/19/78 JAMES FAZIO v. JAMES FAZIO

June 19, 1978

JAMES FAZIO, SR. & ANOTHER
v.
JAMES FAZIO, JR.



Middlesex. Petition filed in the Probate Court for the county of Middlesex on January 22, 1970. The case was heard by Sullivan, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Insanity. Guardian, Insane person, Temporary guardian.

The opinion of the court was delivered by: Quirico

A probate Judge's finding that the respondent in a proceeding under G. L. c. 201, § 6, was in need of a permanent guardian "due to mental illness" was insufficient to satisfy the statutory requirement that a person be found incapable of taking care of himself by reason of mental illness. [398-400]

Where a Probate Court Judge erred in appointing a permanent guardian pursuant to G. L. c. 201, § 6, his appointment of a temporary guardian pursuant to § 14, which was based solely on his prior appointment of the permanent guardian, was also error. [400]

Evidence at a hearing on petitions for appointment of temporary and permanent guardians pursuant to G. L. c. 201, §§ 6 and 14, including evidence that the respondent had been diagnosed at various times as having an "obsessive compulsive neurosis," "phobia," "psychoneurosis," "schizophrenic personality," and "definite mental illness," was insufficient to warrant a finding that the respondent was incapable of taking care of himself by reason of mental illness or that his welfare required the immediate imposition of a temporary guardian. [400-405]

This court declined to consider a challenge to the constitutionality of G. L. c. 201, §§ 6 and 14, authorizing the appointment of guardians, where decrees appointing a temporary and permanent guardian under those sections were vacated on other grounds. [405-406]

These are two appeals by James Fazio, Jr. (James), from decrees entered in the Probate Court for Middlesex County, one placing him under guardianship pursuant to G. L. c. 201, § 6, as appearing in St. 1956, c. 314, § 2, *fn1 and a second appointing a temporary guardian for him pursuant to G. L. c. 201, § 14, as appearing in St. 1956, c. 314, § 7. *fn2 For the reasons stated below we vacate both decrees.

The procedural background of the case is as follows. On January 22, 1970, James Fazio, Sr., and John A. Fazio (plaintiffs), the father and younger brother of James, filed a petition in the Probate Court for Middlesex County seeking appointment of a guardian for the then thirty year old James, pursuant to G. L. c. 201, § 6. The petition alleged that James was a "mentally ill person, and incapable of taking care of himself." The action was consolidated for hearing with an action for separate support brought by Minnie Fazio, the mother of James, against James Fazio, Sr. The consolidated hearing was commenced on April 13, 1971, and the Judge entered a decree on June 8, 1972, appointing a guardian. James seasonably appealed from that decree. On October 11, 1972, the plaintiffs petitioned under G. L. c. 201, § 14, for the appointment of a temporary guardian for James pending resolution of the appeal and that petition was allowed on the same date. James also seasonably appealed from that decree.

On November 22, 1972, James requested a report of the material facts, which the Judge filed on April 11, 1974. On December 5, 1974, a motion was filed for the appointment of a guardian ad litem to determine whether James should be permitted to pursue his appeals, and it was allowed on January 7, 1975. On July 8, 1975, the guardian ad litem filed a report in which he assented to the prior claims of appeal by James, stating, in part, "I am unable to say that an appeal would be frivolous and I believe it would be in James' best interest and emotional stability that it be done."

On May 5, 1977, the parties filed a joint application for direct appellate review, and on May 31, 1977, we granted the application. G. L. c. 211A, § 10 (A).

We summarize the material facts concerning James's personal and psychological history as found and reported by the Judge. James was one of two sons of James, Sr., and Minnie Fazio, a couple who had lived all of their married lives in Medford, Massachusetts. During his years in grammar and high school, James was a brilliant student. As a result he apparently had an opportunity to attend Yale University, but because his mother did not wish him to be so far away from home, he instead enrolled at Tufts University in Medford. He attended Tufts for only two months, after which time he dropped out and joined the United States Navy without the consent of his parents. However, due to deep emotional stress, he was unable to go through basic training and was sent by the Navy to Philadelphia for treatment. At that time, James was suffering from an obsession of contamination and was found to be in need of further treatment. When James was discharged from the Navy on March 7, 1960, he did not go home, but instead spent six weeks living at the Essex Hotel in Boston.

James developed a neurosis about contamination. When once again living at home, he would spend all of his time cleaning such things as his automobile, the kitchen stove, and the refrigerator, due to his feelings that people would become infected. His cleaning of the kitchen stove, which he ultimately dismantled and threw away, delayed the sale of the family house for some time. James would remonstrate and fight with his brother, John, for contaminating the refrigerator, as a result of which there was much dissension between the two brothers. In one ...


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