IN RE: J.C.S. (and a companion case 1). (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

We have been asked by a judge of the Probate and Family Court to determine among other things the appropriate legal standard for determining the mental capacity required for an adult to “hire an attorney” and whether that standard is different if the adult is the subject of a conservatorship and a guardianship. The judge purported to report five questions to this court pursuant to G. L. c. 215, § 13. Although we agree with the judge that the reported questions do implicate issues of vital importance that, according to the attorneys who appeared at oral argument, arise repeatedly in guardianship and conservatorship cases, we hold that the report does not comply with the statute and therefore it must be discharged. See Matter of Jones, 379 Mass. 826, 828 n.2 (1980).²

Procedural posture. J.C.S., the subject of the proceedings giving rise to this appeal, is an “incapacitated” person who, since May 2018, has been the subject of a guardianship, G. L. c. 190B, § 5-306 (b), and a “protected person” who is the subject of a conservatorship, G. L. c. 190B, §§ 5-401, 407 (b). He was appointed an attorney (“appointed counsel”), who, on November 8, 2018, filed a motion to terminate both the conservatorship and guardianship. Nonetheless, J.C.S. also attempted to retain multiple additional attorneys to request that the court remove his guardian and conservator, and discharge his court-appointed attorney. After appointed counsel's motion for instructions and the co-conservators’ motion to strike the appearance of J.C.S.’s purported new attorney, the judge held an evidentiary hearing. The judge concluded that J.C.S. did not have the capacity to hire an attorney and voided all agreements for legal representation he had made after the guardian and conservators had been appointed. The judge then reported five questions to this court as set forth in the margin.³ The judge purported to report these questions under “M.G.L. ch.215 sec. 13 and Because the Questions Raised Arise Frequently, Are Important, Are of Considerable Public Interest, and Appellate Guidance is Required to Inform Judges and Attorneys in the Future.”⁴

Discussion. Despite our lengthy review of the merits of this matter, at the end of the day we conclude these questions were not properly reported and discharge the report. Leaving aside G. L. c. 215, § 13, this court does not issue advisory opinions. Indeed,

“The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”

Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 534 (1937), quoting Mills v. Green, 159 U.S. 651, 653, (1895).

As for G. L. c. 215, § 13, it provides,

“A judge of the probate court by whom a case or matter is heard for final determination may reserve and report the evidence and all questions of law therein for consideration of the appeals court, and thereupon like proceedings shall be had as upon appeal. And if, upon making an interlocutory judgment, decree or order, he is of opinion that it so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the appeals court, he may report the question for that purpose, and stay all further proceedings except such as are necessary to preserve the rights of the parties.”

Questions must be reported as part of an active case. See Guardianship of D.C., 479 Mass. 516, 521 (2018) (“The first path [under the statute] places an undecided case before the appellate court and puts the appellate court in a position to enter, or order the entry of, the final judgment in the first instance; the second path places before the appellate court the issue of the correctness of a significant interlocutory ruling made by a Probate and Family Court judge. See Dorfman v. Allen, 386 Mass. 136, 138 [1982]; Paquette v. Koscotas, 12 Mass. App. Ct. 52, 54-55 [1981]”). The statute does not permit the submission of questions in cases that are no longer active by a judge seeking an advisory opinion.

The judge has already decided this case, which ended -- at least as to the question of capacity to hire an attorney -- as a result of his order, so this is not first-path-appropriate. Nor is his order interlocutory in that it would affect the “merits of the controversy” over J.C.S.’s capacity to hire an attorney, so it is not proper under the second path. Consequently, the reported questions are not properly before us pursuant G.L. c. 213, § 15. See Matter of Jones, 379 Mass. at 828 n.2. The report, therefore, must be discharged.

In certain circumstances, while discharging a petition, the Supreme Judicial Court has used its discretion to address questions not properly reported to it. See Matter of D.C., 479 Mass. 516, 522 (2018) (exercising discretion to address important questions of considerable public interest to provide guidance to judges and attorneys); Gray v. Commissioner of Revenue, 422 Mass. 666, 668 (1996) (“The parties have briefed the issues ․ and ‘we believe the public interest would be best served by our answering the questions posed.’ [citation omitted]); Dorfman v. Allen, 386 Mass. 136, 138 (1982) (“because the issues have been raised and briefed, we will state our views.”). In addition, in Matter of Estate of Southwick, 66 Mass. App. Ct. 740 (2006), this court discharged an improper question but stated its views on the premise of one of the issues raised.

Even assuming we have the discretion to answer the reported questions, this is not an appropriate case for its exercise. We are aware of no case in which an appellate court has addressed an improperly reported question when there has been no party before the court with an interest in the case. Here, appointed counsel informed us that J.C.S. does not wish to contest the judge's decision. With the judge's unusual appointment of J.C.S.’s appointed counsel in the Probate Court to serve as the co-conservator and, in that capacity to be the “aggrieved party” (which, as co-conservator, she is not) and appellant in this matter, there is no one before us representing the position taken by J.C.S. in the probate court. In order properly to adhere to her ethical obligations, and neither take a position that conflicts with her role as J.C.S.’s counsel below, or with her role as co-conservator, appointed counsel has taken no position before us on the reported questions. See note 4, supra.

Further, in cases in which such discretion has been exercised, despite the Probate and Family Court judge's failure to follow the procedures in § 15, there remained, at the time the question or questions were reported, something pending before the court to which the question bore relevance, or the question involved issues capable of repetition yet evading review. See Gray, 422 Mass. at 668; Dorfman 386 Mass. at 137-138; Southwick, 66 Mass. App. Ct. at 744. The report here is not of questions that are part of ongoing litigation in the Probate and Family Court. There is no ongoing litigation with respect to the capacity of J.C.S. to hire an attorney, and he did not appeal, nor has he sought to participate in this appellate proceeding. The judge's decision was the end of this matter. Nor need the issues necessarily evade review. See note 4, supra; infra at 10.

Finally, for the reasons described supra, the issues have not been fully briefed. Were we to exercise our discretion to answer the questions, the answers would be based almost exclusively on our own research, with no guidance from adversarial parties on many highly complex subsidiary questions. Subsidiary questions that may bear on the issues raised include: Is there a difference between forming a lawyer client relationship and retaining a lawyer? In different circumstances do attorneys for people with putatively diminished capacities have responsibilities of non-disclosure to third parties, in order to protect those people, that might have some bearing on the questions reported? Do our statutes, which give incapacitated individuals certain rights, including rights against their very guardians and conservators, have some bearing on the questions? How is the question affected by the adoption of the Massachusetts Uniform Probate Code, and the State's various policies requiring the least restrictions on liberty of incapacitated and protected persons? Is the answer different in circumstances where the individual needs a lawyer because he is adverse to his guardian or conservator? We have little guidance on these and other complicated questions.

In these circumstances, we think addressing these abstract questions would be an abuse of discretion. Moreover, if the issues are recurrent, they need not evade review. They can be presented in a direct appeal or in a properly reported question. If a motion to strike the appearance of counsel on the basis of client competence to hire is allowed by way of an order that is interlocutory in the sense envisioned by the second path, the motion judge should on request stay that ruling and report the question (under path two), which then can be addressed in an adversary proceeding at the appellate level with the putatively hired attorney who represented the incapacitated individual at the motion hearing representing the individual as appellant. Alternatively, the same stay procedure might in some circumstances be used at the end of the case to allow an appeal of the order on appeal of the final judgment. This gives us confidence that in a properly presented case, the appellate courts will be able to address the issues presented here.

Conclusion. The reported questions are hereby discharged.

So ordered.

FOOTNOTES

2.   We acknowledge the amicus brief submitted by the Center for Public Representation, Mental Health Legal Advisors Committee, Disability Law Center, Inc., and the Committee for Public Counsel Services.

3.   “1. Is capacity to enter into a contract the appropriate standard for an adult person to hire an attorney?“2. Given that the Massachusetts Uniform Probate Code statutory standards for an ‘incapacitated’ person (guardianship) and a ‘protected’ person (conservatorship) are distinguishable, should different standards of capacity be required when a person seeking to hire an attorney is already under guardianship or already under a conservatorship, or both?“3. Is contractual capacity required for the decision to fire an attorney, and if so should it be the same capacity standard for hiring an attorney?“4. If the required capacity to hire an attorney is contractual and a person already under guardianship or conservatorship is deemed not to meet the standard, should the choice of an attorney be more appropriately exercisable by the guardian or the conservator?“5. Does the determination whether it should be the authority of the guardian or the conservator to hire an attorney depend on the matter for which the attorney is sought (for example, care and management of financial matters or health care decisions, ordinary day to day activities, and personal associations)?”

4.   In his decision, the judge also appointed J.C.S.’s appointed counsel as J.C.S.’s new co-conservator, as one of his prior co-conservators was resigning. In addition, in reporting the five questions, the judge designated appointed counsel, in her capacity as co-conservator, as the “aggrieved party” and appellant.The judge placed appointed counsel in a difficult position. As counsel for J.C.S., she had, among other things, argued for removal of the co-conservator and guardian. Yet now the judge has designated her the co-conservator, and appointed her as the “aggrieved party” and appellant, despite having actually ruled in favor of the prior conservators, who prevailed over J.C.S. as represented at the hearing by appointed counsel herself. The problems this has caused – including the absence of any “appellee” before us – would not arise in the circumstances of a properly reported question. If in an interlocutory order the individual is found incompetent to hire counsel, the judge can stay that order and report the question, allowing the chosen counsel of the individual to argue before the appellate court in favor of the individual's position; the guardian or conservator would of course take the opposing position.Appointed counsel has alerted this court from the outset about the risks inherent in the judge's appointments with respect to her ethical obligations. She has sought guidance as to whether to argue J.C.S.’s position below, the conservator's position below, or to take no position. Ultimately she took that final course, which we agree was appropriate. In order not to spend down J.C.S.’s resources, she has actually undertaken the enormous task of litigating this case pro bono before this court. This is remarkable. Without expressing any opinion on the propriety of the judge's appointments, appointed counsel is to be commended for the sensitivity with which she has presented the case to us with respect to the judge's questions and her conscientiousness in adhering to her ethical obligations to J.C.S. while complying with the trial court's order.