Opinion
19-P-184
06-12-2020
GUARDIANSHIP OF G.P.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
G.P., the respondent, is an eighty-six year old woman who suffered a severe head injury in 1983. In 2014, a doctor affiliated with Old Colony Elder Services was summoned to investigate an elder abuse report concerning G.P.; she was subsequently transported involuntarily to the hospital. Old Colony Elder Services filed a petition for guardianship. A temporary guardian was appointed and G.P. was admitted to a skilled nursing facility after the judge concluded that G.P. was an incapacitated person within the meaning of G. L. c. 190B, § 5-101 (9). She now argues that there was insufficient evidence to reasonably support the judge's conclusion. She also argues that the judge improperly considered evidence of G.P.'s "poor decision making and eccentric hygiene." We affirm.
The record showed that G.P. was in a coma for several weeks. When she emerged from the coma, her personality and behavior were permanently altered.
Discussion. Absent clear error, we accept the judge's subsidiary findings of fact and review only the conclusions drawn from those facts. Guardianship of Brandon, 424 Mass. 482, 488 (1997). Under the statute, an incapacitated person is defined as "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, see G. L. c. 190B, § 1-109, and the burden of proof rests with the petitioner to prove that a person is incapacitated." Guardianship of D.C., 479 Mass. 516, 523 (2018). On appeal, an appellant must show that the judgment "is so markedly against the weight of evidence as to suggest that the [finder of fact] allowed [himself] to be misled, [was] swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion." Guardianship of Jackson, 61 Mass. App. Ct. 768, 770 (2004), quoting W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993).
A judge may appoint a guardian if the judge finds that "(1) a qualified person seeks appointment; (2) venue is proper; (3) the required notices have been given; (4) any required medical certificate is dated and the examination has taken place within [thirty] days prior to the hearing; (5) any required clinical team report is dated and the examinations have taken place within [one hundred and eighty] days prior to the filing of the petition; (6) the person for whom a guardian is sought is an incapacitated person; (7) the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person; and (8) the person's needs cannot be met by less restrictive means, including use of appropriate technological assistance." G. L. c. 190B, § 5-306 (b).
We conclude that there was sufficient evidence in the record, by a preponderance of the evidence, to show that G.P. was incapacitated under the statute. The doctor that met with G.P. testified that she qualified for a diagnosis of personality change, due to her traumatic brain injury in 1983. That diagnosis was derived from G.P.'s medical records and the doctor's personal interactions with her. Consistent with that diagnosis, medical records documented G.P.'s struggles with personal hygiene and her failure to recognize certain safety risks after her brain injury. At the hospital, her toenails were "three or four inches long" and her sweatshirt had "many cigarette burns on it." Her children showed genuine concern about her well-being. Once she was placed in the nursing facility, staff held the opinions that G.P.'s hygiene was poor and that they had not seen her shower since she entered the facility. She also displayed signs of hoarding. Prior to her entrance into the nursing facility, she had been smoking three packs of cigarettes per day. The full weight of the evidence shows that G.P.'s mental state was a genuine safety risk to herself and to others at her residence.
The doctor had also observed cigarette burns on the furniture in G.P.'s apartment.
By way of defense, G.P. relies in large part on Lane v. Candura, 6 Mass. App. Ct. 377 (1978), a case where an elderly woman suffering from gangrene refused to consent to amputation of her leg when the likely outcome of that refusal was death. Id. at 381-382. In Lane, we held that "the irrationality of her decision does not justify a conclusion . . . Candura is incompetent in the legal sense" and denied her daughter's appeal for guardianship. Id. at 383. This case is easily distinguishable, however. First, we disagree with G.P.'s contention that "[t]he choices of [G.P.], whose own characteristics are no more debilitating than those of . . . Candura, involve a less grave risk of harm than life or death." Here, the risk of harm is considerably greater, in that the cigarette burns on her clothes and furniture reflect a clear and dangerous risk to the safety of herself and to others in her residence. Additionally, Candura had a clear appreciation of the ramifications of failing to seek medical treatment. Id. By contrast, G.P. struggled to understand the risk her smoking habits posed to herself and to others, and could not grasp the full implications of her eviction. That G.P. could no longer manage her own hygiene -- growing toenails three to four inches long and wearing unkempt clothes with cigarette burns -- was valid evidence that G.P. lacked "the ability to meet essential requirements for physical health, safety, or self-care." G. L. c. 190B, § 5-101 (9).
After the housing authority initiated eviction proceedings against G.P., her attorney entered into a stipulation agreeing that G.P. would vacate her apartment, in order to preserve the housing subsidy she was receiving. G.P. wished to contest the eviction proceedings.
We also appreciate the limited nature of the guardianship imposed on G.P. The restrictions balance the competing interests at play and do not restrict her ability to smoke, while ensuring the safety of herself and others. We note that if the guardianship were lifted, she would be effectively homeless and could not return to her previous residence.
Decree and order affirmed.
By the Court (Meade, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 12, 2020.