GUARDIANSHIP OF v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

S.C., a person under guardianship, appeals from a Probate and Family Court decree denying her petition to terminate the guardianship but limiting the guardianship to authority over decisions regarding S.C.’s health care, personal safety, housing, financial affairs, “personal relationships with non-medical providers,” and, at paragraph 9(5), “monitoring treatment with antipsychotic medication.” S.C. also appeals from an order denying her motions for a new trial and for expert funds. We strike paragraph 9(5) of the decree but otherwise affirm.

Background. In 2017, when S.C. was thirty-two years old, a judge (original judge) of the Probate and Family Court appointed S.C.’s sister as her guardian, without limitation (original decree), pursuant to the Massachusetts Uniform Probate Code (MUPC), G. L. c. 190B. The original decree included a substituted judgment treatment order authorizing the guardian to consent to the administration of antipsychotic medications which S.C. was, at the time, prescribed. In 2021, S.C. petitioned to terminate the guardianship. The guardian and another sister objected. After a trial in 2024, a different judge (trial judge) denied the petition to terminate but issued a new decree that limited the guardian's authority (decree). As set forth in paragraph 9 of the decree, the guardian was authorized to make decisions for S.C.’s (1) health care, (2) personal safety, (3) housing, (4) financial affairs, (5) treatment with antipsychotic medication, and (6) “personal relationships with non-medical providers.” S.C. retained rights to manage her activities of daily living, to take prescribed medications without assistance but with some continued monitoring, to work and pursue employment, to arrange for transportation to and from work or medical appointments, and to make “all other decisions not specifically limited or precluded pursuant to” the guardian's authority as described above.

S.C. appealed from the decree and, with leave from this court, moved for a new trial, citing ineffective assistance of counsel and arguing that the original decree was void because it was obtained by fraud due to S.C.’s previous falsification of her intelligence quotient (IQ). She also sought funds for an expert. The trial judge denied the motion for a new trial without a hearing, thus rendering moot the motion for funds for an expert. S.C. appealed from the denial of her motions, and the appeals were consolidated.

Discussion. 1. Motion to terminate guardianship.¹ Guardianship proceedings for an “incapacitated person,” as defined by G. L. c. 190B, § 5-101 (9), as amended through St. 2014, c. 225, § 11, are governed by the MUPC, which provides, inter alia, that “[o]n petition of the incapacitated person ․, the court, after notice and hearing, may remove a guardian if the person under guardianship is no longer incapacitated or for other good cause,” G. L. c. 190B, § 5-311 (a). The person petitioning for termination of guardianship has the initial burden “of producing some credible evidence of changed circumstances since the initial guardianship determination, such that [the person] may no longer be in need of a guardian.” Guardianship of Kelvin, 94 Mass. App. Ct. 448, 456 (2018). Thereafter, the burden shifts to the guardian to prove, by a preponderance of the evidence, that the person remains incapacitated. See G. L. c. 190B, § 1-109; Guardianship of D.C., 479 Mass. 516, 523 (2018).² We review a judge's decision on a petition for removal of a guardian for an abuse of discretion or clear error of law. See Guardianship of C.A., 102 Mass. App. Ct. 392, 395 (2023).

Here, S.C. produced ample credible evidence of changed circumstances from the time of the original guardianship decree. Prominently, the 2017 clinical team report supporting the petition for guardianship noted that, based on testing in 2016, S.C. had an IQ of forty-four, a score that placed S.C.’s intellectual functioning below 99.9 percent of her peers; documented “multiple psychiatric hospitalizations,” including one in the recent past; listed S.C.’s array of physical and mental health diagnoses,³ some of which contributed to poor decision-making that precipitated “emergencies” affecting S.C.’s health and safety; and noted that S.C. was prescribed antipsychotic medication. In support of her petition to terminate the guardianship, S.C. produced evidence that by 2021 she had undergone updated IQ testing with a composite result of eighty-six, a score “just a little below” the average range of ninety to 110; she had not been hospitalized in three years; many of her psychiatric symptoms had subsided; and she was no longer prescribed any antipsychotic medications.

The burden then shifted to the guardian. Although we consider the question close, we are satisfied that the trial judge did not err or abuse his discretion in concluding that the guardian met her burden of proving that S.C. remained incapacitated and that guardianship remained necessary to S.C.’s welfare. See G. L. c. 190B, § 5-311 (a) & comment. Cf. Guardianship of Kelvin, 94 Mass. App. Ct. at 456. We do not read the trial judge's decision to turn on a finding that S.C. was incapacitated by reason of an intellectual disability as provided in G. L. c. 190B, § 5-101 (12).⁴ Instead, we understand from the findings and decree that the trial judge determined that S.C. was an “incapacitated person” based on her treatable, but permanent, mental health diagnosis of borderline personality disorder ⁵ and its ongoing effect on S.C.’s ability to make decisions about her own health and safety. See G. L. c. 190B, § 5-101 (9) (defining “incapacitated person”). Although the trial judge recognized that S.C.’s functioning improved between the time of the original decree and the time of the trial at issue in this appeal, his findings reflect that, at the time of trial, S.C.’s borderline personality disorder contributed to her inability to make certain decisions essential to her health and safety. See id. Notably, the trial judge found that, at the time of the 2024 trial, S.C. still displayed maladaptive symptoms of borderline personality disorder, including “splitting” reports to medical providers; that she lacked understanding of the role of good decision-making in interpersonal relationships and continued to make decisions that created risks to her own safety;⁶ and that she lacked appreciation for the structures put in place to help her manage her activities of daily living.⁷

The evidence supported the trial judge's conclusion that continuing care and supervision were necessary and desirable for S.C.’s health care, personal safety, housing, financial affairs, and personal relationships. See G. L. c. 190B, § 5-306 (b) (7). Nothing less restrictive than guardianship was offered or evident as a means of providing that supervision. See G. L. c. 190B, § 5-306 (b) (8). Finally, the trial judge carefully tailored the decree to S.C.’s limitations “so as to encourage [her] development of maximum self-reliance and independence.” G. L. c. 190B, § 5-306 (a). This was neither error of law nor abuse of discretion. See Guardianship of D.C., 479 Mass. at 523 (definition of G. L. c. 190B, § 5-101 [9] supplies substantive grounds for appointing guardian); Guardianship of C.A., 102 Mass. App. Ct. at 395 (appointive orders reviewed for error of law or abuse of discretion).

Other than as we describe below, we decline to disturb the decree.

2. Paragraph 9(5) of the decree. The original decree included a provision authorizing treatment of S.C. with antipsychotic medications (Rogers order), made by the original judge using a substituted judgment determination. See Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 491 (1983). The Rogers order expired on May 17, 2018. See Guardianship of Erma, 459 Mass. 801, 804 (2011) (substituted judgment treatment order expired on review and termination date). To the extent that the trial judge found otherwise, his findings were clearly erroneous.

Moreover, there is nothing in the record to show that the guardian sought either to renew the Rogers order when it expired or to reinstate a Rogers order at the 2024 trial; it is apparent from the transcript that the trial judge did not conduct a substituted judgment hearing as part of the 2024 trial.⁸ In the decree, the trial judge permitted S.C. to make her own decisions as to, inter alia, “taking her prescribed medications without assistance,” but paragraph 9(5) of the decree “continue[d]” the guardian's authority to “monitor[ ] treatment with antipsychotic medication.” However, the guardian had no such continuing authority to after 2018. “An order appointing a guardian for a mentally ill person does not by itself authorize the guardian to consent to the administration of antipsychotic medication to the ward; a separate order for this purpose, one that employs a substituted judgment standard” is required. Guardianship of Erma, 459 Mass. at 802 n.2. Logically, the same is true for a decree authorizing the guardian to monitor such medications. See G. L. c. 190B, § 5-306A; Guardianship of A.R., 99 Mass. App. Ct. at 350-351 & nn.3-4. See also Guardianship of Erma, supra; Rogers, 390 Mass. at 504-506, 512-513. We therefore agree with S.C. that the trial judge clearly erred in making findings premised on the belief that the order had continuing effect. Further, purporting to extend the order in these circumstances was an error of law. For all these reasons, paragraph 9(5) of the decree is struck.⁹

3. Posttrial motions. a. Motion for a new trial. The trial judge acted within his discretion in denying S.C.’s motion for a new trial based on her claim of ineffective assistance and, separately, her claim that the original decree was void.¹⁰ To prevail on an ineffective assistance claim, S.C. had the burden of showing that counsel's behavior fell “measurably below that which might be expected from an ordinary fallible lawyer” and that she was prejudiced as a result. Care & Protection of Georgette, 439 Mass. 28, 33 (2003), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We discern no error in the trial judge's conclusion that S.C. failed to make the required showing.¹¹ See Adoption of Raissa, 93 Mass. App. Ct. 447, 455-456 (2018).

First, S.C. points to trial counsel's affidavit, in which trial counsel averred that she “did not sufficiently cross-examine the Guardian's expert ․ on the disparity in IQ testing results between the time of the guardianship order and the present time”; S.C. argues that additional cross-examination would have undermined the expert's credibility. Assuming without deciding that counsel's performance fell below accepted standards, we discern no resulting prejudice. See Care & Protection of Georgette, 439 Mass. at 33 & n.7. This is because the expert's testimony about S.C.’s IQ testing was limited -- he testified to his awareness that, historically, S.C. had had “various IQ[ ]” test results, and that “the most recent one, from September of 2021, [was] a score of 86” -- and was not particularly important to the expert's opinion that S.C. continued to need a limited guardianship. The expert's opinion (and, as we have discussed, the trial judge's determination) that S.C. continued to need a limited guardian turned on evidence of S.C.’s mental health, not her IQ test results.

Alternatively, S.C. contends that trial counsel fell below accepted standards of practice in failing to probe S.C.’s expert witnesses “regarding less restrictive alternatives to guardianship.” See G. L. c. 190B, § 5-306 (b). Again, assuming without deciding that S.C. is correct on that point, we discern no resulting prejudice. As noted, the trial judge tailored the limited guardianship to S.C.’s limitations “so as to encourage [her] development of maximum self-reliance and independence.” G. L. c. 190B, § 5-306 (a). Indeed, S.C. has not identified an alternative that is less restrictive than the limited guardianship the trial judge ultimately ordered.

S.C. also claims ineffective assistance based on trial counsel's failure “to remind the court ․ to provide reasonable accommodation” for S.C. when she voluntarily left the court room in anticipation of the guardian's testimony.¹² Although trial counsel provided an affidavit in support of the motion for a new trial, she did not aver that her ability to represent S.C. at trial was compromised by S.C.’s temporary absence. For this reason, even assuming that counsel's performance fell below accepted standards, we discern no resulting prejudice.

S.C.’s final ineffective assistance claim stems from trial counsel's failure to argue before the court that the antipsychotic treatment plan included in the 2017 decree had expired in 2018. As we have noted, we conclude that the trial judge erred in “continuing” any portion of the 2017 Rogers order, and we therefore strike the portion of the decree that authorizes the guardian to monitor S.C.’s treatment with antipsychotic medications. S.C. has not shown that trial counsel's omission prejudiced her as to any other aspect of the decree. See Guardianship of L.H., 84 Mass. App. Ct. 711, 712 (2014).

We are no more persuaded by S.C.’s claim that the trial judge erred in rejecting her argument that the original decree was obtained by fraud and was therefore void. S.C. presented evidence at trial to show that her IQ as reported in 2017 was not, and could not be, valid given S.C.’s functional skills; later, in support of the motion for a new trial, S.C. averred that she intentionally underperformed on the initial test at the guardian's direction. However, the guardian flatly denied that she had in any way attempted to influence S.C. relative to that testing. The trial judge credited the guardian's testimony; he discredited S.C.’s averment to the contrary. Where the judge presided over the trial, we defer to his assessment of the credibility of the testimony. See Commonwealth v. Torres, 469 Mass. 398, 403 (2014). The trial judge properly denied the motion for a new trial on the grounds that the original decree was void.

b. Motion for expert funds. Where we conclude that the trial judge properly denied S.C.’s motion for a new trial, and affirm that ruling, we also affirm the order denying S.C.’s request for funds to develop the arguments she sought to present at a new trial.

Conclusion. The decree dated May 10, 2024 (entered May 14, 2024), is modified to strike paragraph 9(5). As so modified, the decree is affirmed. The order denying the motions for a new trial and expert funds is affirmed.

So ordered.

FOOTNOTES

1.   In conducting our analysis, we rely on the facts as found by the judge, reserving those relating to the substituted judgment treatment order for later discussion and omitting findings drawn from the testimony of experts who relayed hearsay used to form an opinion. We are satisfied there was no prejudice from such findings given the information was independently admissible and provided a permissible basis on which the experts could formulate opinions. See Guardianship of A.R., 99 Mass. App. Ct. 349, 356-357 (2021). We agree with S.C. that, to the extent the judge found that the guardian had authority to consent to S.C.’s treatment with antipsychotic medications at the time of trial, his findings were clearly erroneous for the reasons we discuss below, and we do not consider them. S.C.’s remaining challenges to the judge's findings of fact largely “amount to no more than dissatisfaction with the judge's weighing of the evidence and his credibility determinations,” to which we defer. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). See Custody of Eleanor, 414 Mass. 795, 799 (1993).

2.   In Guardianship of Kelvin, 94 Mass. App. Ct. at 454, this court required “clear and convincing evidence” because a parent petitioned to terminate guardianship of her minor child, thus implicating the higher standard for proving parental unfitness. Id. See Adoption of Lisette, 93 Mass. App. Ct. 284, 293 & n.14 (2018). That standard is not applicable here.

3.   Specifically, “Depression with occasional suicidal ideation and auditory hallucinations, Borderline Personality Disorder, Anxiety, ․ Attention Deficit Disorder, ․ diabetes, hydrocephalus, hypertension, kidney problems, obesity, and visual impairment.”

4.   We disagree with S.C.’s contention that the trial judge incorrectly found that S.C.’s 2021 IQ test result “indicate[d] borderline intellectual functioning.” There was testimony from an expert witness called by S.C. that her score of eighty-six was “just a little below average”; the trial judge's finding was consistent with that evidence.

5.   We disagree with S.C. that “[i]t is difficult to discern” what clinically-diagnosed condition the judge relied on, considering the 372 detailed findings, conclusions, and rationale the judge provided after the trial, many of which discuss her diagnoses.

6.   For example, the trial judge found that S.C., who is a survivor of domestic violence, was living with her husband despite the husband's assault and battery on S.C.’s elderly father in 2023 and his fights with other residents at the supportive housing environment in which she lived with her husband at the time of trial. S.C. told her sister that the husband “has a bad temper but it's not his fault.”

7.   Although S.C. was getting consistent support from Department of Developmental Services and her supportive housing program, she wanted to move out of the program's housing.

8.   Indeed, it was undisputed at trial that S.C.’s psychiatrist had discontinued her prescription for antipsychotic medication several years prior.

9.   The remainder of the decree is not affected, however. We are not persuaded that findings insufficient to sustain a substituted judgment treatment order were also so compelling they “pervade[d] the judge's view of the case,” as S.C. claims.

10.   S.C. makes passing reference in a heading of her brief to denial of the postdecree motions “without a hearing.” That reference does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993).

11.   We assume without deciding that S.C. was entitled to the effective assistance of counsel, notwithstanding the appellees’ citations to Commonwealth v. Patton, 458 Mass. 119, 124 (2010), and Guardianship of L.H., 84 Mass. App. Ct. 711, 718 (2014), to support their argument to the contrary.

12.   S.C. asked the judge to allow her to “sit outside for this part” despite the judge's explanation that doing so would prevent her from seeing the testimony “in real time.” S.C. remained outside for only a short period of time.