Heard: January 10, 2018.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Michael C. Boyne (Jessica L. Deratzian also present) for the
Owen Talley, Committee for Public Counsel Services, for D.C.
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
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
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.
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.
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. The temporary guardianship was extended on
March 2 after a hearing, but lapsed on June 6, after the
judge declined to extend the guardianship.
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."
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.
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."
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 ...