In re A.R.

99 Mass.App.Ct. 349

166 N.E.3d 492

GUARDIANSHIP OF A.R.

No. 20-P-2

Appeals Court of Massachusetts, Middlesex.

Argued January 8, 2021.

Decided March 24, 2021.

Ilse Nehring, Boston, for A.R.

LaRonica Lightfoot, Assistant Attorney General for Department of Mental Health.

Present: Blake, Desmond, & Hand, JJ.

BLAKE, J.

Following a trial, a judge of the Probate and Family Court found A.R. incapacitated and entered a decree and order appointing a limited guardian on A.R.'s behalf and approving a treatment plan authorizing the administration of antipsychotic medications. ¹

A.R. appeals, contending that there was insufficient evidence that he is incapable of caring for himself by reason of mental illness and not competent to make informed decisions regarding his medical treatment. A.R. also maintains that the judge erred in concluding that his substituted judgment if he were competent would be to consent to the administration of antipsychotic medication. The gravamen of A.R.'s complaint is that the judge improperly admitted in evidence the medical certificate and the clinician's affidavit filed in connection with the guardianship petition.² We affirm the portion of the decree and order that appointed a limited guardian, but vacate the portion of the order authorizing the use of antipsychotic medications.³

Background. Following A.R.'s inpatient treatment on at least four occasions, in July 2012, A.R.'s parents were appointed as his temporary coguardians with authority to monitor the administration of antipsychotic medication to him, pursuant to Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983) (hereinafter, referring to Rogers treatment plan, Rogers authority, or Rogers monitor). Thereafter, Richard Bevins was appointed as A.R.'s special guardian and Rogers monitor.⁴ The Rogers treatment plan was extended until December 2013. At the conclusion of Bevins's appointment, Melissa Luongo was first appointed A.R.'s temporary limited guardian and, thereafter, his permanent limited guardian, both with Rogers authority. In March 2015, Luongo sought permission to resign as A.R.'s guardian. Although no action was taken at this time, it is uncontested that Luongo took no further action as A.R.'s guardian or Rogers monitor. A decree entered in October 2018 formally terminated Luongo's role as guardian.

In December 2016, the Department of Mental Health (department) filed a petition seeking the appointment of a limited guardian for A.R. with Rogers authority.⁵

In December of 2017, the department filed a motion for allowance of a temporary Rogers treatment plan as the department alleged that A.R.'s mental health declined; he refused to meet with his treating psychiatrist, Dr. Miriam Goodman; and he neglected his hygiene. During this time, not only had Luongo failed to act on behalf of A.R. due to a breakdown in their communication, but the Rogers treatment plan had also expired. The judge suspended Luongo's appointment, appointed a successor special guardian with Rogers authority, canceled the January 2018 trial date, and scheduled a review in April 2018. Thereafter, the temporary appointment was extended, and the case was tried on October 30, 2018.

1. Motion in limine. Prior to trial, A.R. filed a motion in limine to exclude the department's two proposed exhibits: the medical certificate dated October 12, 2018, and the clinician's affidavit dated October 4, 2018, both signed by Dr. Goodman (collectively, contested exhibits). First, A.R. argued that the contested exhibits were inadmissible pursuant to statute. See G. L. c. 231, § 87 ("In any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them"). In the alternative, A.R. sought to exclude certain portions of the contested exhibits because they contained inadmissible hearsay and were unduly prejudicial, speculative, or privileged. The judge deferred ruling on the motion as discussed infra.

2. The trial. Dr. Goodman was the only witness to testify.⁶ Dr. Goodman was qualified as an expert witness in mental capacity and psychopharmacology, without objection. Dr. Goodman began treating A.R. in 2012; at the time of the trial, A.R. was thirty-one years old. In the period prior to trial, Dr. Goodman only saw A.R. once every two to three months in connection with upcoming court hearings because A.R. had refused to go to see her. As part of her work, Dr. Goodman spoke with the director of the group home where A.R. resided for many years. She also reviewed A.R.'s medical records.⁷ Over objection, Dr. Goodman testified that in her opinion, A.R. suffered from schizophrenia -- a major mental illness. Her opinion was based on her own observations and treatment of A.R., reports of his behavior from staff at the group home,⁸ and a review of his medical records.

Dr. Goodman described how A.R.'s illness affects his judgment. For example, Dr. Goodman opined that A.R. is unable to make decisions regarding his housing based on past extensive periods of homelessness. And, with the exception of one instance, A.R. refused routine medical care for the past six years. He also has very poor hygiene,⁹ and refused to discuss his treatment, goals, or needs with Dr. Goodman. In Dr. Goodman's opinion, A.R.'s prognosis without treatment was poor.

Dr. Goodman testified that A.R. does not have the ability to provide informed consent to treatment for his mental illness as he is unable to weigh the risks and benefits of treatment. She opined that the appropriate treatment for A.R. is antipsychotic medication, preferably in an injectable form. At the time of trial, A.R. voluntarily took Prolixin, an ingested medication, as prescribed; however, he objected to the use of Invega Sustenna, an injectable medication. A.R. described feeling dizzy with the injectable medication, but refused to clarify what he meant when asked by Dr. Goodman. Based on this, Dr. Goodman testified that with antipsychotic medication, A.R. would be able to care for himself, access appropriate medical care, and resume familial relationships.

Discussion. 1. The guardianship. As relevant here, after conducting a hearing, a judge may appoint a guardian where the petitioner proves that a qualified person seeks appointment; venue is proper; the required notices have been given; any required medical certificate is dated and the examination has taken place within thirty days prior to the hearing; the person for whom a guardian is sought is an incapacitated person; the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person; and the person's needs cannot be met by less restrictive means, including use of appropriate technological assistance. G. L. c. 190B, § 5-306 (b ). An incapacitated person is "an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance." G. L. c. 190B, § 5-101 (9).

"The standard of proof to be applied in a guardianship proceeding is a preponderance of the evidence, and the burden of proof rests with the petitioner to prove that a person is incapacitated. A guardianship may be general or limited in scope." (Citations omitted.) Guardianship of D.C., 479 Mass. 516, 523, 143 N.E.3d 370 (2018). "[T]he ability to create a limited guardianship is intended to maximize the liberty and autonomy of a person subject to guardianship." Guardianship of B.V.G., 474 Mass. 315, 323, 52 N.E.3d 988 (2016), citing G. L. c. 190B, § 5-306 (b ) (8).

2. Admission of contested exhibits. It is without question that in order to file a petition for the appointment of a guardian of an incapacitated person, the petitioner, here the department, must file a medical certificate and a clinician's affidavit with the petition (or explain why it is impossible to do so). G. L. c. 190B, § 5-303 (b ) (11). See Probate and Family Court Guardianship and Conservatorship Form MPC 120, par. 6; note 3, supra. The statute does not provide for the admissibility of a medical certificate or a clinician's affidavit in a contested proceeding. Contrast G. L. c. 123A, § 14 (c ) (report of qualified examiner, which is required to be filed to initiate sexually dangerous person petition, admissible at trial).

The medical certificate form, as promulgated by the Probate and Family Court, includes a statement on the first page that it will be used in the process of determining whether to appoint a guardian.¹⁰ See Probate and Family Court Guardianship and Conservatorship Form MPC 400. The department contends that with this disclaimer, and because the judge had access to the contested exhibits as part of the court record, it would be futile to allow a motion to exclude documents that were already before the judge. This argument, however, conflates the filing requirement with the petitioner's burden at trial. A requirement that the petition must be filed with a medical certificate does not, ipso facto, mean the document is admissible. Although different from the contested exhibits at issue here, a comparison to the admissibility of a medical certificate affidavit helps to inform our decision.¹¹ A medical certificate affidavit may be used at the time of the final determination of incapacity in the limited circumstances when counsel for the incapacitated person does not object to its use. See Probate and Family Court Standing Order 2-10 (2010). There is no comparable standing order for the contested exhibits.

Although a judge's findings may "be based exclusively on ‘affidavits and other documentary evidence,’ " they may only do so where there are no contested issues of fact. Guardianship of Moe, 81 Mass. App. Ct. 136,...