Guardianship of B.V.G. , 474 Mass. 315 ( 2016 )

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SJC-11925
GUARDIANSHIP OF B.V.G.
Norfolk. December 7, 2015. - May 23, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Guardian, Incompetent person. Probate Court, Guardian,
Standing. Practice, Civil, Appointment of guardian,
Intervention, Standing. Words, "Interested person."
Petition for guardianship filed in the Norfolk Division of
the Probate and Family Court Department on February 16, 2011.
A motion to intervene was heard by George F. Phelan, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Anthony D. Martin (Jennifer L. Mikels with him) for the
grandfather.
Adam J. Nussenbaum for the father.
Frederick M. Misilo, Jr., for The Arc of Massachusetts,
Inc., amicus curiae, submitted a brief.
DUFFLY, J. The maternal grandfather of B.V.G., a young
woman with intellectual disabilities, sought to intervene in
permanent guardianship proceedings pending in the Probate and
2
Family Court on the petition of B.V.G.'s father, who had been
appointed B.V.G.'s temporary guardian when she was eighteen
years old.1 The grandfather asserted that his relationship with
B.V.G. has been restricted by her father in his capacity as
temporary guardian, that B.V.G. has indicated expressly her
desire to communicate with him and has sought contact with him
via social media, and that such a relationship is in B.V.G.'s
best interests. The grandfather filed a motion to intervene,
pursuant to Mass. R. Civ. P. 24, 365 Mass. 769 (1974),2 in the
guardianship proceedings, seeking to limit the father's ability
to restrict B.V.G.'s access to the grandfather.
Concluding that the grandfather lacked standing to
intervene because he was not an "interested person" within the
meaning of G. L. c. 190B, § 5-306 (c), a Probate and Family
Court judge denied the motion. The grandfather appealed, and
the Appeals Court affirmed the denial, on grounds other than
those relied upon by the motion judge. See Guardianship of
B.V.G., 87 Mass. App. Ct. 250 (2015). We allowed the
1
B.V.G.'s father had had sole legal and physical custody of
her as a minor, from approximately the age of twelve, following
her parents' divorce.
2
The Massachusetts Rules of Civil Procedure apply to
Probate and Family Court proceedings in which equitable relief
is sought, including matters relative to guardianship and
conservatorship. See G. L. c. 215, § 6; Mass. R. Civ. P. 1, as
amended, 450 Mass. 1403 (2008).
3
grandfather's petition for further appellate review.3
General Laws c. 190B, § 5-306 (c), provides that the
Probate and Family Court may, "on its own motion or on
appropriate petition or motion of the incapacitated person or
other interested person, . . . limit the powers of a
guardian . . . and thereby create a limited guardianship."
Based on our review of the record and the judge's findings, we
conclude that the facts relevant to the grandfather's standing
to bring the petition are not disputed, and that those facts
support the conclusion that the grandfather is an "interested
person" within the meaning of G. L. c. 190B, § 5-306 (c). As
such, the grandfather is entitled to intervene as of right in
the pending proceeding for permanent guardianship.4
3
The guardianship proceeding was stayed pending resolution
of the appeal.
4
In his brief, the father contested B.V.G.'s interest in
maintaining a relationship with the grandfather, and also
challenged whether the grandfather is an "interested person"
under G. L. c. 190B, § 5-306 (c). He challenged also whether
the grandfather is entitled to file a motion to intervene to
limit the proposed permanent guardianship, or to file a separate
petition to limit the guardianship pursuant to G. L. c. 190B,
§ 5-306 (c). At argument before us, the father's position had
changed considerably. The father agreed that B.V.G. desires
contact with her grandfather, the grandfather is an "interested
person" within the meaning of the statute, an "interested
person" in that context is one interested in the well-being of
the subject of the guardianship petition, and an "interested
person" pursuant to G. L. c. 190B, § 5-306 (c), is entitled to
file a separate petition to limit a guardianship. The father
stated that his remaining challenge was as to whether the
grandfather is entitled to intervene in the father's pending
4
In that proceeding, the grandfather may pursue his claim
that the guardianship should be limited because it is in the
best interests of B.V.G. that she be permitted to communicate
with him if she continues to express a wish to do so. We
therefore reverse the order denying the grandfather's motion to
intervene and remand the matter to the Probate and Family Court
for further proceedings in the pending petition for permanent
guardianship, consistent with this opinion.5
1. Background and prior proceedings. In considering the
grandfather's standing to intervene,6 the motion judge conducted
a nonevidentiary hearing at which B.V.G.'s appointed counsel,7
petition for permanent guardianship, rather than filing a
subsequent petition to limit the proposed permanent guardianship
if and when it has been established.
5
We acknowledge the amicus brief filed in support of the
plaintiff submitted by The Arc of Massachusetts, Inc.
6
Intervention as of right is permitted under Mass. R. Civ.
P. 24 (a), 365 Mass. 769 (1974), "when the applicant claims an
interest relating to the property or transaction which is the
subject of the action and he is so situated that the disposition
of the action may as a practical matter impair or impede his
ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties."
7
B.V.G.'s attorney expressed generally that he viewed
contact with her grandfather positively, but took no official
position regarding the motion to intervene.
B.V.G.'s attorney had conducted negotiations, on B.V.G.'s
request, to improve her relationship with her mother, which
resulted in the father's and mother's stipulation concerning
B.V.G.'s having increased contact with her mother, and a
stipulation added to the temporary guardianship order that the
5
the father's counsel, the grandfather's counsel, and the mother,
appearing pro se, were each permitted to make representations
and submit documentary material. We summarize the uncontested
facts based on the judge's decision, supplemented by uncontested
statements and documents presented at the hearing. See Board of
Registration in Med. v. Doe, 457 Mass. 738, 745 (2010) (party's
concessions and exhibits attached to party's pleadings
sufficient to establish facts despite lack of evidentiary
hearing).
B.V.G. was born in February, 1993. She has an intellectual
disability as well as attention deficit hyperactivity disorder
and Tourette's syndrome. B.V.G.'s parents, who separated when
she was quite young, were divorced following a lengthy and
acrimonious custody dispute over B.V.G. The father was awarded
sole legal and physical custody of B.V.G. in 2005, when she was
twelve years old. Although B.V.G. had enjoyed contact with the
grandfather until 2005, thereafter, the father precluded contact
between B.V.G. and her maternal relatives, including the
grandfather. According to B.V.G.'s mother, B.V.G. had had a
"strong relationship" with her grandfather, which B.V.G. wished
to maintain while the father had tried to "cut off" this
relationship.
father was not to interfere; the attorney stated that he
preferred to take this route with the grandfather, and that
negotiations were ongoing.
6
In February, 2011, when B.V.G. reached the age of eighteen,
the father filed a petition in the Probate and Family Court
seeking to be appointed her legal guardian on the basis of her
intellectual disability. The father was appointed B.V.G.'s
temporary legal guardian in December, 2011.8 See G. L. c. 190B,
§§ 5-303, 5-308. The order establishing the temporary
guardianship authorized B.V.G. to determine with whom she
socialized, except for her mother; the order allowed limited
supervised visitation between B.V.G. and her mother.9
In January, 2013, the father filed a petition seeking
permanent guardianship. At that time, the father's temporary
guardianship was extended through April, 2013, pending a hearing
on his petition for permanent guardianship. A stipulation by
the father, the mother, and an attorney appointed to represent
B.V.G. was incorporated in the extended guardianship,
8
General Laws c. 190B, §§ 5-303 and 5-308, authorize the
appointment of permanent and temporary guardians for an
"incapacitated person." Under G. L. c. 190B, § 5-101 (9), 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."
9
The parties do not dispute that the father has not sought
to restrict B.V.G.'s contact with her paternal relatives, that
she has had unlimited access to contact with them, and that she
has maintained relationships with them.
7
authorizing slightly increased visitation between B.V.G. and her
mother.10 The order for temporary guardianship also was amended
to authorize certain limited contact between B.V.G. and her
grandfather.11 Under the terms of that stipulation, the
grandfather was permitted to send B.V.G. one electronic mail
message per day, and to receive no more than one electronic mail
message from her. This stipulation, however, did not result in
increased contact between B.V.G. and the grandfather. B.V.G.
did not have access to electronic mail at the residential
treatment program where she lived during the week, and the
grandfather contends that, on the weekends, when B.V.G. lived
with her father, the father did not permit her to receive
electronic mail messages from the grandfather.
Arguing that the father was not furthering B.V.G.'s best
10
Counsel for B.V.G.'s father represented at the
nonevidentiary hearing on the grandfather's motion to intervene
that B.V.G. and her mother have made some progress in rebuilding
their relationship, and that, by agreement, visits have been
expanded beyond the terms set forth in the order for temporary
guardianship.
11
The initial guardianship order stated that B.V.G. could
choose her own associations, except with respect to the
stipulation concerning the mother. There was no provision in
that order restricting B.V.G.'s relationship with her maternal
grandfather; on its face, therefore, the first order for
temporary guardianship allowed unlimited contact between B.V.G.
and the grandfather. It is undisputed, however, that the father
did not permit such contact. Counsel for B.V.G. stated at the
hearing on the grandfather's motion to intervene that "we all
took it for granted that grandfather had no rights . . . and
father could restrict the contact."
8
interests by restricting her relationship with him, the
grandfather filed a motion to intervene, seeking to limit the
pending permanent guardianship pursuant to G. L. c. 190B, § 5-
306 (c). In support of his motion that he was an "interested
person," the grandfather submitted printouts of his electronic
communications with B.V.G. through a social media Web site as
evidence of his caring for B.V.G., and of her wish to have
contact with him. The grandfather's assertion that it was
B.V.G. who initiated the electronic contact is supported by
these documents.12
The father does not suggest that there is any reason that
B.V.G. should not be allowed to maintain a relationship with her
grandfather, and no longer contests that the grandfather has an
interest in B.V.G.'s welfare. The father also does not dispute
that he has restricted B.V.G.'s relationship with the
grandfather. Rather, in response to the grandfather's
contention that such a relationship is in B.V.G.'s best
interests, the father maintains that, as B.V.G.'s legal
guardian, he has the right to determine those with whom she
associates.
Concluding that the grandfather was not an "interested
12
Among other things, B.V.G. made the initial "friend"
request to her grandfather on a social media Web site, asking to
have contact with him; in other messages, B.V.G. told her
grandfather that she loves and misses him.
9
person" within the meaning of G. L. c. 190B, § 5-306 (c), the
judge denied the grandfather's motion to intervene as of right.13
The judge also appointed a guardian ad litem, however, to report
to the court on whether B.V.G.'s best interests are served with
her present circle of activities, acquaintances, and contacts.
2. Discussion. Review of a question of statutory
interpretation is de novo. Water Dep't of Fairhaven v.
Department of Envtl. Protection, 455 Mass. 740, 744 (2010). In
reviewing a motion to intervene, which involves questions of
fact and of law, "[a] judge has discretion in determining
whether an intervening party has demonstrated facts that entitle
him or her to intervention as of right, and we accordingly
review the judge's factual findings for clear error."
Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011).
Apart from the discretion to find facts, however, a judge's
ruling on a motion to intervene as of right is a ruling of law,
not a discretionary matter. See id. ("Whether those facts are
sufficient to meet the requirements for intervention is a
question of law, . . . and is reviewed as such").
13
In his motion to intervene, the grandfather also argued
that he should be allowed to intervene permissively, pursuant to
Mass. R. Civ. P. 24 (b); that motion was denied. Although he
filed a notice of appeal from that denial, in his brief the
grandfather does not pursue any argument relative to the motion
for permissive intervention. The father argues that there was
no error in denying the motion for permissive intervention
because the grandfather has no right to intervene. See part
2.b, infra.
10
Here, the motion judge properly concluded that G. L.
c. 190B, § 5-306 (c), creates a cognizable interest that may
provide the basis upon which to intervene in a pending matter in
a motion filed pursuant to Mass. R. Civ. P. 24 (a). As stated,
the judge then determined that the grandfather was not an
"interested person" within the meaning of G. L. c. 190B, § 5-
306 (c). We turn first to the judge's determination that the
grandfather is not an "interested person."
a. Meaning of "interested person." General Laws c. 190B,
§ 5-306 (c), provides that the Probate and Family Court may, "on
its own motion or on appropriate petition or motion of the
incapacitated person or other interested person, . . . limit the
powers of a guardian . . . and thereby create a limited
guardianship." An "interested person," as defined by G. L.
c. 190B, § 1-201 (24),
"includes heirs, devisees, children, spouses, creditors,
beneficiaries, and any others having a property right in or
claims against a trust estate or the estate of a decedent,
ward, or protected person. It also includes persons having
priority for appointment as personal representative, and
other fiduciaries representing interested persons. The
meaning as it relates to particular persons may vary from
time to time and shall be determined according to the
particular purposes of, and matter involved in, any
proceeding."
This definition is applicable, inter alia, to all types of
guardianships and conservatorships under G. L. c. 190B,
including those over minors and incapacitated adults.
11
In reaching his conclusion that the grandfather is not an
"interested person," the motion judge commented that the
enumerated definitions of "interested person" in G. L. c. 190B,
§ 1-201 (24), applicable to all guardianships and
conservatorships, "hint of a financial, but not visceral, stake
in the underlying proceedings," and that an individual who is
"interested in the welfare" of an incapacitated person "may not
be sufficient."
To determine the meaning of "interested person" under G. L.
c. 190B, § 5-306 (c), we apply fundamental principles of
statutory construction. "[A] statute must be interpreted
according to the intent of the Legislature ascertained from all
its words construed by the ordinary and approved usage of the
language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the
main object to be accomplished" (citation omitted).
Massachusetts Insurers Insolvency Fund v. Smith, 458 Mass. 561,
565 (2010).
Considering the plain language of the limited guardianship
provision outside its statutory context, the "interest" required
to qualify as an "interested person" might be viewed both as a
potential intervener's own interests in protecting the
incapacitated person's estate and as an interest in the well-
being of the incapacitated person. "Statutes are to be
12
interpreted, [however,] not alone according to their simple,
literal or strict verbal meaning, but in connection with their
development, their progression through the legislative body, the
history of the times, [and] prior legislation. . . . General
expressions may be restrained by relevant circumstances showing
a legislative intent that they be narrowed and used in a
particular sense" (citation omitted). Sullivan v. Chief Justice
for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006).
A guardianship proceeding is designed to effectuate the
best interests of the incapacitated person. See Matter of
McKnight, 406 Mass. 787, 791 (1990); Guardianship of Anthony,
402 Mass. 723, 726 (1988); King v. Dolan, 255 Mass. 236, 237
(1926). A focus solely on the interests of the potential
intervener in the financial estate of the incapacitated person,
that might be read in some of the provisions of G. L. c. 190B,
§ 1-201 (24), does not take into account the express mandate of
the expansive language of the last, catch-all provision, stating
that "[t]he meaning [of 'interested person'] as it relates to
particular persons may vary from time to time and shall be
determined according to the particular purposes of, and matter
involved in, any proceeding." See G. L. c. 190B, § 1-201 (24).
That purpose is set forth explicitly in G. L. c. 190B, § 5-
306 (a): "The court shall exercise the authority conferred in
[G. L. c. 190B, §§ 5-301 et seq.,] so as to encourage the
13
development of maximum self-reliance and independence of the
incapacitated person and make appointive and other orders only
to the extent necessitated by the incapacitated person's
limitations or other conditions warranting the procedure."
The statutory purpose is further explained in the comment
accompanying this language in the Uniform Probate Code:
"The purpose of subsections (a) and (c) is to remind
an appointing court that a guardianship under this
legislation should not confer more authority over the
person of the [incapacitated person] than appears necessary
to alleviate the problems caused by the [person's]
incapacity. This is a statement of the general principle
underlying a 'limited guardianship' concept. For example,
if the principal reason for the guardianship is the
[incapacitated person's] inability to comprehend a personal
medical problem, the guardian's authority could be limited
to making a judgment, after evaluation of all
circumstances, concerning the advisability and form of
treatment and to authorize actions necessary to carry out
the decision. Or, if the [incapacitated person's]
principal problem stems from memory lapses and associated
wanderings, a guardian with authority limited to making
arrangements for suitable security against this risk might
be indicated. . . .
"[I]f the court determines that most of a respondent's
demonstrated problems probably could be alleviated by the
institution of an appropriate authority to manage the
[incapacitated person's] property and make appropriate
expenditures for the [incapacitated person's] well-being,
the court should utilize subsection (b) to recast the
proceedings so that a conservator, rather than a guardian,
would be appointed."
Uniform Probate Code prior § 5-306 comment, 8 U.L.A. (Part III)
186 (Master ed. 2013).
Given this, reading "interested person" within the meaning
of G. L. c. 190B, § 5-306 (c), as providing a means by which to
14
protect the intervener's own interests, as distinct from the
intervener's interest in advancing those of the incapacitated
person, is inconsistent with the express purpose of the
statutory provision. See Globe Newspaper Co., petitioner, 461
Mass. 113, 117 (2011) (Legislature presumably is aware of
statutory and common law that governs matter which it is
enacting). See also Matter of McKnight, supra at 791;
Guardianship of Anthony, supra at 726. Consistent with the
purpose underlying the Legislature's 2008 adoption of the
guardianship provisions of the Uniform Probate Code, see St.
2008, c. 521, the ability to create a limited guardianship is
intended to maximize the liberty and autonomy of a person
subject to guardianship.14 See G. L. c. 190B, § 5-306 (b) (8)
(court should craft guardianship orders only to extent "person's
needs cannot be met by less restrictive means").
From this statutory context, it is clear that the
14
The concept of a limited guardianship arises from the
enactment of G. L. c. 190B, § 5-306 (c), in 2008, as part of
Massachusetts's adoption of the Uniform Probate Code. See St.
2008, c. 521, § 9. Even before codification of this provision,
however, Massachusetts courts recognized that "a conscientious
judge" must consider carefully the extent to which a
guardianship is necessary, being "mindful of the adverse social
consequences which might follow an adjudication [that a
guardianship is necessary]." See Guardianship of Roe, 383 Mass.
415, 425 (1981). We also have emphasized repeatedly that a
determination of "incompetence" does not eliminate an
individual's interest in dignity and in the expression of
autonomous values and desires. See, e.g., Guardianship of Doe,
411 Mass. 512, 517-518, cert. denied sub nom. Doe v. Gross, 503
U.S. 950 (1992); Matter of Moe, 385 Mass. 555, 566 (1982).
15
Legislature intended G. L. c. 190B, § 5-306 (c), to provide a
means by which an individual interested in the welfare of an
incapacitated person could advocate on behalf of that person's
interests in obtaining such a limited guardianship. We
therefore conclude that an "interested person" as defined by
G. L. c. 190B, § 1-201, within the meaning of G. L. c. 190B,
§ 5-306 (c), is a "person interested in the welfare of the
incapacitated person." See, e.g., G. L. c. 190B, § 5-306 (a).
Other provisions in G. L. c. 190B further demonstrate that
the phrase "interested person" in G. L. c. 190B, § 5-306 (c), is
intended to refer to a "person interested in the incapacitated
person's welfare."15 See Locator Servs. Group, Ltd. v.
Treasurer & Receiver Gen., 443 Mass. 837, 859 (2005) (meaning of
term should be construed in harmony with surrounding statutory
sections). General Laws c. 190B, §§ 5-303 (a) and 5-311 (a),
for instance, permit a court to appoint or remove a guardian for
an adult incapacitated person, on petition of any person
interested in the incapacitated person's welfare.16 The power to
15
Indeed, the form promulgated by the Probate and Family
Court for litigants to use in petitioning to limit an existing
guardianship of an incapacitated adult allows a "person
interested in the welfare" of an incapacitated person to file
such a petition. See Probate and Family Court Guardianship and
Conservatorship Form MPC 220.
16
Pursuant to G. L. c. 190B, § 5-309 (a), defining the
powers, rights, and duties of a guardian,
16
limit a guardianship is inherent in the power to appoint and
remove a guardian, and is made explicit in the statutory
language. An individual petitioning for appointment of a
guardian, for example, may, at the same time, seek limitations
to that appointment.17 See G. L. c. 190B, § 5-303 (a) (petition
to appoint guardian may seek "a determination of incapacity, in
whole or in part, and the appointment of a guardian, limited or
general").
b. Whether the grandfather is an "interested person."
Because the motion judge determined that the grandfather was not
an "interested person" within the meaning of G. L. c. 190B, § 5-
306 (c), he did not reach any determination on the question of
the grandfather's and B.V.G.'s interests. We conclude that,
"[a] guardian shall exercise authority only as necessitated
by the incapacitated person's mental and adaptive
limitations, and, to the extent possible, shall encourage
the incapacitated person to participate in decisions, to
act on his own behalf, and to develop or regain the
capacity to manage personal affairs. A guardian, to the
extent known, shall consider the expressed desires and
personal values of the incapacitated person when making
decisions, and shall otherwise act in the incapacitated
person's best interest and exercise reasonable care,
diligence, and prudence. A guardian shall immediately
notify the court if the incapacitated person's condition
has changed so that he or she is capable of exercising
rights previously limited."
17
The right to intervene to limit a particular aspect of a
guardianship does not, by contrast, extend to participation in
the proceeding as a whole. As noted, the removal or appointment
of a guardian is governed by other statutory provisions. See
G. L. c. 190B, §§ 5-303 (a), 5-311 (a).
17
based on undisputed facts in the record, the grandfather has
demonstrated an interest in B.V.G.'s welfare sufficient to
establish that he is an "interested person" within the meaning
of G. L. c. 190B, § 5-306 (c).
The grandfather specifically asserted in his motion to
intervene that B.V.G. has expressed her interest in having a
relationship with him, an interest he reciprocates. Indeed,
both B.V.G.'s expressed interest in maintaining a relationship
with her grandfather, and the grandfather's ongoing interest in
her welfare, are at this point undisputed. Although the father
questioned in his brief whether B.V.G. had expressed an interest
in a relationship with the grandfather, at oral argument he
conceded that she had. Nothing in the record before us
indicates that increased contact between B.V.G. and her
grandfather would be harmful, and the record reflects that the
grandfather has an interest in advocating on B.V.G.'s behalf to
limit the guardianship.
The judge noted that the father, as temporary guardian,
disagreed with the idea of B.V.G. having any relationship with
the grandfather, and the father concedes that he has restricted
that relationship. Although G. L. c. 190B, § 5-309 (a),
requires a guardian to "consider the expressed desires and
personal values of the incapacitated person when making
decisions," the father has maintained consistently that, as
18
guardian, absent an express limitation on his authority, he may
restrict B.V.G.'s relationship with her grandfather, because he
has the authority to do so.18 The record, therefore, supports
the conclusion that the grandfather is an "interested person"
pursuant to G. L. c. 190B, § 5-306 (c).
The father argues that intervention in the guardianship
proceeding is not appropriate because the grandfather has no
right to intervene under Mass. R. Civ. P. 24 (a), which
generally focuses on the intervener's interests, while a
guardianship proceeding focuses on the interests of the
incapacitated person. He argues also that the grandfather has
no due process right to intervention, and that the judge did not
err in denying permissive intervention.19
The father's argument that the grandfather is not entitled
to intervene misconstrues the meaning of G. L. c. 190B, § 5-
306 (c). As her temporary guardian, the father properly may
argue at a hearing on limiting the guardianship that B.V.G.'s
best interests do not include a relationship with her
18
The motion judge, agreeing with the father's view as to
this, commented that the grandfather's petition "derogates
Father's authority" as the "lifestyle standard bearer for
[B.V.G.] pursuant to Troxel v. Granville, 530 U.S. 57 (2000)," a
case applicable to parents' control over their minor children.
19
As stated, see note 13, supra, on appeal the grandfather
does not pursue any argument relative to permissive
intervention, and because of the result we reach, we do not
address it.
19
grandfather. As discussed supra, however, the father's argument
that the grandfather's intervention is not proper does not take
into account the plain language of G. L. c. 190B, § 5-306 (c),
which, on its face, entitles an "interested person," one we have
concluded is interested in the welfare of the incapacitated
person, to intervene to limit a guardianship.
c. Adequacy of representation. After concluding that the
grandfather was an "interested person," the Appeals Court
affirmed the denial of the grandfather's motion on the ground
that B.V.G.'s interests were adequately represented by her
counsel and the newly appointed guardian ad litem. See
Guardianship of B.V.G., 87 Mass. App. Ct. 250, 258-259 (2015).
General Laws c. 190B, § 5-306 (c), however, protects an
interested person's interest in advocating on behalf of an
incapacitated person's right to the most appropriately limited
guardianship, regardless whether the incapacitated person is
already represented. The provision authorizes a court to limit
a guardianship "on its own motion or on appropriate petition or
motion of the incapacitated person or other interested person."
This language unambiguously grants an "interested person" an
equal and unconditional right to petition to limit the
guardianship, along with that of the incapacitated person.20
20
During argument before us, the parties expressed
uncertainty regarding the proper procedure for seeking
20
Nothing in the statutory language, or in its legislative
history, suggests that an interested person must establish that
an incapacitated person is not already adequately represented
before being permitted to intervene to limit a guardianship. In
adopting the Uniform Probate Code in 2008, and G. L. c. 190B,
§ 5-306, in particular, the Legislature was aware that a court
may appoint both an attorney and a guardian ad litem for an
incapacitated person, pursuant to G. L. c. 190B, § 5-106 (a)
and (b), if the court determines that the person's interests are
not adequately represented, but nevertheless provided an
"interested person" the ability to file a motion seeking to
limit a guardianship.
Moreover, the language of G. L. c. 190B, § 5-311 (b),
relating to the removal or resignation of a guardian and
termination of incapacity, and the comments accompanying that
language in the Uniform Probate Code, see Uniform Probate Code
art. V prefatory note, 8 U.L.A. (Part III) 19 (Master ed. 2013),
intervention pursuant to G. L. c. 190B, § 5-306 (c). General
Laws c. 190B, § 5-306 (c), affords an "interested person" a
statutory right to proceed by motion to intervene in an ongoing
guardianship proceeding, to seek to limit the guardianship.
Such a motion to intervene may be brought under Mass. R. Civ.
P. 24 (a); once a judge has determined, however, that the movant
is an "interested person" within the meaning of G. L. c. 190B,
§ 5-306 (c), as a practical matter, the interested person's
ability to vindicate that interest will be impeded if the
individual is not allowed to intervene. Where there is no
pending petition for guardianship, a person seeking to limit an
existing guardianship should file a petition using Probate and
Family Court Guardianship and Conservatorship Form MPC 220.
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further indicate a legislative preference for encouraging an
incapacitated person and other "interested person[s]" to
advocate to the court to safeguard the liberty interests of the
incapacitated person. General Laws c. 190B, § 5-311 (b),
provides:
"The incapacitated person or any person interested in
the welfare of the incapacitated person may petition for an
order that the person is no longer incapacitated and for
termination of the guardianship. A request for an order
may also be made informally to the court."
The comment accompanying this language in the Uniform Probate
Code states:
"The provisions of subsection (b) were designed to
provide another protection against the use of guardianship
proceedings to secure a lock-up of a person who is not
capable of looking out for his or her personal needs. If
the safeguards imposed at the time of appointment fail to
prevent an unnecessary guardianship, subsection (b) is
intended to facilitate [an incapacitated person's] unaided
or unassisted efforts to inform the court that an injustice
has occurred as a result of the guardianship."
Uniform Probate Code prior § 5-311 comment, 8 U.L.A. (Part III)
198 (Master ed. 2013).
Thus, the Massachusetts implementation of the Uniform Probate
Code encourages a broad right of advocacy in favor of an
incapacitated person's protected interest in a limited
guardianship. Once a judge has concluded that a proposed
intervener is an "interested person," therefore, nothing more is
required to establish that person's entitlement to intervene as
of right.
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3. Conclusion. The judgment denying the grandfather's
motion to intervene is reversed. The matter is remanded to the
Probate and Family Court for further proceedings in the pending
petition for permanent guardianship, consistent with this
opinion.
So ordered.