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Guardianship of D.C.

Supreme Judicial Court of Massachusetts, Norfolk

May 11, 2018

GUARDIANSHIP OF D.C.

          Heard: January 10, 2018.

         Petition for appointment of a guardian filed in the Norfolk Division of the Probate and Family Court Department on January 26, 2016. The case was heard by George F. Phelan, J., and questions of law were reported by him to the Appeals Court.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

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

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

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

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

          GANTS, C.J.

         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 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 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 ...


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