Opinion
12-P-71
12-12-2012
CONSERVATORSHIP OF RICHARD M. STARR.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a hearing and having made the required findings pursuant to G. L. c. 190B, §§ 5-404 and 407, a judge of the Probate and Family Court appointed Mary Ellen Berselli conservator of her brother, Richard M. Starr. The evidence supports the judge's conclusion that Starr is unable to manage his property and business affairs effectively because of a clinically diagnosed impairment. Of the $5,291.76 Starr receives each month from Social Security, Veterans' Administration benefits, and postal retirement benefits, however, the judge ordered that Starr be allowed to control the postal retirement of $323.76 per month, beginning after October 31, 2011. Berselli appeals, specifically challenging the portion of the order allowing Starr to continue to control his postal retirement benefits. In concluding that Starr should have control over his postal retirement, the judge reasoned that Starr 'has expressed a desire to have enough money to take friends out for a meal or ice cream. The least restrictive means of providing management over the property and business affairs of [Starr] is to allow [him] to manage and control his postal retirement. The court exercises its authority to encourage the development of maximum self-reliance and independence of a protected person and to make protective orders only to the extent necessitated by the protected person's limitations and other conditions warranting the procedure.'
Before that date, the postal retirement benefits were applied toward repayment of a loan secured through the Postal Employees' Credit Union.
Starr filed a notice of appeal below, but has not pursued any cross appeal here.
Berselli argues that the evidence does not support the judge's order and that, specifically, Starr never expressed a desire to take anyone for ice cream or a meal. Starr did testify, however, that he is 'tired of being scrutinized and being . . . made a spectacle out of,' and that he wants to control at least some of his money. And, the evidence showed he ate in restaurants daily, and there was testimony from a former friend that they went out for ice cream. The judge further found that Starr is a kind and giving person. The evidence as a whole allowed the judge to extrapolate that Starr would like to treat friends to a meal or ice cream. Quite apart from the specific details of the 'meal or ice cream' examples cited by the judge, Starr's testimony supported the broader point that Starr wished to preserve some limited financial autonomy, to permit him to make occasional discretionary expenditures without asking for money from someone else.
The transcript also reflects a comment audibly whispered by Starr to his counsel, suggesting that he gave money to a friend to allow her to buy gas and ice cream.
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Since the commencement of these proceedings, temporary orders have given control of Starr's money to his sister and his friend, and by all accounts, Starr has been doing better than he had been when he had full control of his funds. Still, even now, Starr testified that he receives eight dollars each day to spend as he desires. There was no evidence that Starr has been unable to handle this amount. The amount the judge is allowing Starr to control exceeds that amount by less than fifty dollars per month. The Uniform Probate Code provides that the court shall exercise the authority to appoint a conservator 'to encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person's limitations and other conditions warranting the procedure.'
G. L. c. 190B, § 5-407(a), as inserted by St. 2008, c. 521, § 9. While the evidence of Starr's disability along with his poor spending choices and history of being taken advantage of by others support the appointment of a conservator, the evidence also demonstrates that Starr has familiarity with his finances and is frustrated with his lack of control over at least some of his monies.
The judge was not plainly wrong in allowing Starr to have control over his postal retirement funds, a small fraction of his total monthly income. See Russell v. Russell, 336 Mass. 762, 763 (1958) (judge not 'plainly wrong' in appointing guardian). We do not view her decision as 'an arbitrary determination, capricious disposition, [or the product of] whimsical thinking, or [an] idiosyncratic choice that no conscientious judge, acting intelligently, could honestly have reached and which effectively amounts to a miscarriage of justice.' Care and Protection of Georgette, 54 Mass. App. Ct. 778, 787 (2002), S. C., 439 Mass. 28 (2003).
Order of appointment affirmed.
By the Court (Cypher, Green & Hanlon, JJ.),