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SJC-12390

                         GUARDIANSHIP OF D.C.



            Norfolk.    January 10, 2018. - May 11, 2018.

    Present:     Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.


Guardian. Nursing Home. Moot Question. Probate Court,
     Guardian, Uniform practices. Practice, Civil, Appointment
     of guardian, Moot case, Report.



     Petition for appointment of a guardian filed in the Norfolk
Division of the Probate and Family Court Department on January
26, 2016.

     The case was heard by George F. Phelan, J., and questions
of law were reported by him to the Appeals Court.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Michael C. Boyne (Jessica L. Deratzian also present) for
the hospital.
     Karen Owen Talley, Committee for Public Counsel Services,
for D.C.
     Martin W. Healy, Thomas J. Carey, Jr., John J. Ford, Mark
A. Leahy, Edward Notis-McConarty, Jerry Cohen, & Wynn A.
Gerhard, for Martin W. Healy & others, amici curiae, submitted a
brief.
                                                                   2


     GANTS, C.J.   The issue presented in this case is whether a

Probate and Family Court judge has the legal authority to allow

a hospital's request to transfer a patient to a skilled nursing

facility where the judge did not find the patient to be an

"incapacitated person," as defined in G. L. c. 190B, § 5-101

(9), of the Massachusetts Uniform Probate Code (code), and

therefore did not appoint a guardian for the patient.   We

conclude that a judge does not have this legal authority.    Where

a hospital patient refuses to consent to be transferred to a

nursing facility, a judge may order the patient to be admitted

to a nursing facility under the code only where the judge finds

the patient to be an incapacitated person, and makes the other

findings necessary to appoint a guardian under G. L. c. 190B,

§ 5-306 (b), and then grants the guardian specific authority

under G. L. c. 190B, § 5-309 (g), to admit the incapacitated

person to a nursing facility after finding that such admission

is in the incapacitated person's best interest.1

     Background.   On January 4, 2016, seventy-nine year old D.C.

was admitted to a hospital in Cambridge after suffering a

fracture of her left hip.   During the first month of her


     1 We acknowledge the amicus brief and letter submitted by
Martin W. Healy, Thomas J. Carey, Jr., John J. Ford, Mark A.
Leahy, Edward Notis-McConarty, Jerry Cohen, Wynn A. Gerhard, the
Massachusetts Chapter of the National Academy of Elder Law
Attorneys, Massachusetts Guardianship Policy Institute, and
Massachusetts Advocates for Nursing Home Reform.
                                                                     3


hospitalization, D.C. also presented with acute renal failure,

pancreatitis, and cardiac issues, and she underwent both a

coronary bypass and a mechanical heart valve replacement.    D.C.

refused to have hip surgery at the time and rejected all

medications, including anticoagulants necessitated by her

mechanical heart valve.

     The hospital's initial verified petition for appointment of

a guardian for an incapacitated person and a motion for

appointment of a temporary guardian were filed on January 26,

2016.    The hospital alleged that D.C. was mentally incapacitated

and unable to communicate; it also sought "specific [c]ourt

authorization" to admit her to a nursing facility and, because a

substitute judgment determination might be required, to "consent

or withhold consent for the entry of a [Do Not Resuscitate, Do

Not Intubate, and Comfort Measures Only] order."    The judge

granted the petition for temporary guardianship on February 1,

2016, and D.C.'s attorney was appointed as her temporary

guardian.2   The temporary guardianship was extended on March 2




     2 Temporary guardianships are in effect for ninety days (or
longer "upon a finding of extraordinary circumstances") and may
be extended thereafter for "good cause shown." See G. L.
c. 190B, § 5-308 (a) (where permanent petition for guardianship
is pending, but court finds that waiting for permanent order
would "likely result in immediate and substantial harm to the
health, safety [or] welfare" of alleged incapacitated person,
court may appoint temporary guardian pursuant to motion for
temporary guardianship).
                                                                    4


after a hearing, but lapsed on June 6, after the judge declined

to extend the guardianship.

    The hospital filed another motion for appointment of a

temporary guardianship in July, 2016, asserting that D.C. was an

incapacitated person in need of guardianship based on her

insistent refusal of medical care.   The medical certificate

filed with the petition provided, among other things, that D.C.

"has consistently demonstrated the inability to utilize the

information given to her about her illness and [the hospital's]

proposed treatment options," that her decisions are "putting her

health and life in danger," and that she "lacks [the] capacity

to make medical decisions at this time."

    On September 26, 2016, a different judge conducted a bench

trial at the hospital on the petition for guardianship.     In a

written decision dated November 15, 2016, the judge concluded

that the hospital had failed to meet its burden of proving by a

preponderance of the evidence that D.C. "is an incapacitated

person within the meaning of G. L. c. 190B, § 5-101 (9) [and]

that she is incapable of making decisions about medical

treatment."   He determined that, "although she may be demanding,

difficult, obstreperous and plainly refused to assist or

participate with various medical care personnel at [the]

hospital, [D.C.] has the capacity to discern her medical

condition and needs with respect to anticoagulant medications
                                                                      5


and hip replacement surgery, and has made [an] informed decision

not to participate or engage with the [h]ospital personnel,

understanding that her refusal of the medication may be

seriously harmful or lead to her death, and further

understanding that she requires a hip replacement which cannot

proceed without her taking those medications."    He therefore

dismissed the hospital's petition to appoint a guardian for D.C.

    However, the judge allowed the hospital's request that D.C.

be transferred to a skilled nursing facility, finding that,

notwithstanding D.C.'s refusal to take medications, her current

medical condition "no longer requires an acute level of care and

her medical needs can be met at a skilled . . . nursing

facility."

    In November, 2016, the hospital moved for clarification of

the court's judgment.   During a hearing on the hospital's

motion, the judge reiterated his finding that the hospital had

failed to prove that D.C. was an incapacitated person and

declared that, having so found, he could not order any

guardianship, even a limited guardianship, "solely for the

purpose of admitting [D.C.] to a skilled nursing facility."      He

also declined the hospital's request to issue an order regarding

the hospital's authority to effectuate D.C.'s transfer to a

skilled nursing facility, but he did not revoke his allowance of

the hospital's request that she be transferred.   Instead, on his
                                                                   6


own initiative, he reported three questions of law to the

Appeals Court:

    1. Must a guardian based on a finding of mental incapacity
    first be appointed over respondent to authorize petitioner
    to then admit respondent to a nursing facility?

    2. Does the Massachusetts Probate and Family Court have
    the authority to appoint a "limited guardian," over a
    person not proven to be mentally incapacitated, solely for
    the purpose of admitting the respondent to a nursing
    facility?

    3. Does the Massachusetts Probate and Family Court have
    the authority to order a not mentally incapacitated
    hospital patient to be transferred to a nursing facility?

    The hospital filed a notice of appeal from the judge's

dismissal of the guardianship petition, and moved to consolidate

that appeal with the reported matter.    The Appeals Court allowed

the motion to consolidate, and we transferred the consolidated

case to this court on our own motion.

    Before oral argument on the appeal, the hospital filed a

new petition for guardianship, which the judge allowed.      On

November 8, 2017, the judge found D.C. to be an incapacitated

person, appointed a general guardian for her, and specifically

granted the guardian the authority to admit D.C. to a nursing

facility after finding that such admission was in D.C.'s best

interest.

    Discussion.   1.   Mootness.   The judge's more recent

allowance of the hospital's guardianship petition renders moot

the appeal from the judge's dismissal of the earlier petition.
                                                                    7


But an exception to the mootness doctrine exists "[w]here a case

is 'capable of repetition, yet evading review,'" which may

render dismissal on mootness grounds inappropriate.     Seney v.

Morhy, 467 Mass. 58, 61 (2014), quoting Wolf v. Commissioner of

Pub. Welfare, 367 Mass. 293, 298 (1975).   "In such

circumstances, we do not hesitate to reach the merits of cases

that no longer involve a live dispute so as to further the

public interest."   Aime v. Commonwealth, 414 Mass. 667, 670

(1993).   Here, we decline to reach the merits of the hospital's

appeal from the judge's dismissal of the earlier guardianship

petition inasmuch as it claims that the judge was clearly

erroneous in finding that D.C. was not an incapacitated person.

That finding, based on D.C.'s physical and mental condition at

the time of the earlier hearing, is unique to her, and those

specific factual circumstances are not "capable of repetition"

in this or other cases.

    However, we shall address the matter reported by the judge,

which concerns the lawfulness of allowing a hospital to transfer

a patient involuntarily to a skilled nursing facility in the

absence of a guardianship.   That particular issue is "capable of

repetition and, given the short time periods in which

guardianship matters are often decided and the fluidity of the

proceedings even after an appointment of a guardian . . . , it

is an issue that can easily evade appellate review in the
                                                                      8


ordinary course."    Guardianship of V.V., 470 Mass. 590, 591-592

(2015).   We also note that the guardianship petitions in this

case were all filed after July 1, 2009, when the current

provisions of the code governing guardianship of incapacitated

persons went into effect.     See G. L. c. 190B, art. V, §§ 5–301

to 5-313, inserted by St. 2008, c. 521, §§ 9, 44.     Since 2009,

there has been little appellate jurisprudence interpreting these

code provisions, and therefore little opportunity for us to

provide further guidance that might advance "[u]niformity of

treatment of litigants and the development of a consistent body

of law" (citation omitted).     Zullo v. Goguen, 423 Mass. 679, 682

(1996).   Because guardianship is of significant public

importance, and because this case has been fully argued to us,

we find it appropriate to address the questions posed by the

judge.    See Superintendent of Worcester State Hosp. v. Hagberg,

374 Mass. 271, 274 (1978).     See also Guardianship of Erma, 459

Mass. 801, 804 (2011) (appeal of substituted judgment treatment

order expired and moot, but court "comment[s] briefly on an

issue . . . that has public importance, has been fully briefed

and argued, and may recur under the [code]").

    2.    Propriety of judge's reported questions.    The judge

here declared that he was reporting three specific questions to

the Appeals Court pursuant to Mass. R. A. P. 5, as amended, 378

Mass. 930 (1979).   That particular rule, however, does not
                                                                      9


confer authority on judges to report matters; it simply directs

how reported matters are to proceed under the appellate rules

once they reach an appellate court.   See Gray v. Commissioner of

Revenue, 422 Mass. 666, 667 (1996).   The authority of trial

judges to report matters derives from other court rules and

statutes, and depends, in part, on the type of case and on which

department of the Trial Court is involved.     See, e.g., Mass. R.

Civ. P. 64, as amended, 423 Mass. 1410 (1996); Mass. R. Dom.

Rel. P. 64; Dist./Mun. Cts. R. A.D.A. 5.     See also G. L. c. 231,

§§ 108, 111.

    The authority of a Probate and Family Court judge to report

matters in a guardianship case such as this derives from G. L.

c. 215, § 13.   That statute permits a judge of the Probate and

Family Court to report in two types of situations:     (1) where "a

case or matter is heard for final determination," the judge "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 (2) if after

making an interlocutory ruling, the judge "is of opinion that it

so affects the merits of the controversy that the matter ought,

before further proceedings [in the trial court], to be

determined by the appeals court," the judge may report his or

her interlocutory ruling for immediate appellate review.     See

G. L. c. 215, § 13.   The first path places an undecided case
                                                                    10


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 judge's report in this case does not appear to fit into

either category of reports permitted by G. L. c. 215, § 13.     See

Matter of Jones, 379 Mass. 826, 828 n. 2 (1980).    Nevertheless,

as we occasionally do, we address the reported questions.    See,

e.g., Gray, 422 Mass. at 668; Dorfman, supra at 138.     We do so

because the questions raised by the report are important and of

considerable public interest, and because we anticipate that our

discussion of the issues will provide guidance to judges and

attorneys in the future.

    3.   Legal authority under the code to admit a person

involuntarily to a nursing facility.   The adoption of the code

in July, 2009, resulted in a substantial revision to the State's

statutory guardianship law.   See G. L. c. 190B, art. V, §§ 5–301

to 5-313, inserted by St. 2008, c. 521, §§ 9, 44.     As compared

with the previous statutory scheme, the "additional protections"

offered under the code include a "more precise definition" of

the terms "incapacity" and "disability," additional information
                                                                    11


required of petitioners at the commencement of guardianship

proceedings, and more elaborate reporting requirements for

guardians.     See Article V, Protection of Persons Under

Disability and Their Property, Massachusetts Comment, in The New

MUPC Is Here . . . and Now at 227 (Mass. Cont. Legal Educ.

2012).

    The legal standard to be applied when determining whether a

guardian may be appointed over an individual requires us to read

the definition of an incapacitated person under § 5-101 (9),

together with the prerequisites for appointing a guardian under

§ 5-306 (b).    Section 5-306 (b) provides that, after conducting

a hearing, a court may appoint a guardian where the petitioner

proves

    "(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 180 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" (emphasis added).

See also G. L. c. 190B, § 1-201 (22) ("'Incapacitated person,'

an individual for whom a guardian has been appointed under part

3 of [G. L. c. 190B,] article V").
                                                                  12


    The definition of an "incapacitated person" supplies the

substantive grounds for appointing a guardian for an individual,

for reasons apart from advanced age or youth.   See Article V,

Protection of Persons Under Disability and Their Property,

Prefatory Note, supra.   Under G. L. c. 190, § 5-101 (9), 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."

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.   See Willett v. Willett, 333 Mass.

323, 324 (1955).

    A guardianship may be general or limited in scope.    See

G. L. c. 190B, § 5-303 (a) ("An incapacitated person or any

person interested in the welfare of the person alleged to be

incapacitated may petition for a determination of incapacity, in

whole or in part, and the appointment of a guardian, limited or

general").   When filing a petition for the appointment of a

guardian for an incapacitated person, a petitioner must indicate

on the form whether a general or limited guardianship is sought,

and define the scope of the guardianship.   In the event that a
                                                                 13


general guardianship is sought, the petitioner must offer an

explanation as to why a limited guardianship is "inappropriate."

"[T]he ability to create a limited guardianship is intended to

maximize the liberty and autonomy of a person subject to

guardianship."   Guardianship of B.V.G., 474 Mass. 315, 323

(2016).3   Courts must exercise the authority conferred on them to

"encourage the 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."   G. L. c. 190B, § 5–306 (a).

     Even where a guardian is appointed, whether general or

limited in scope, the guardian does not have the authority to

admit the incapacitated person to a nursing facility4 against the


     3 The Massachusetts Uniform Probate Code Prefatory Note to
article V provides, in part, "The call for 'limited
guardianship' was a call for more sensitive procedures and for
appointments fashioned so that the authority of the protector
would intrude only to the degree necessary on the liberties and
prerogatives of the protected person. In short, rather than
permitting an all-or-none status, there should be an
intermediate status available to the courts through which the
protected person will have personal liberties and prerogatives
restricted only to the extent necessary under the circumstances.
The court should be admonished to look for a least-restrictive
protection approach." Article V, Protection of Persons Under
Disability and Their Property, Prefatory Note, in The New MUPC
Is Here . . . and Now at 227 (Mass. Cont. Legal Educ. 2012).

     4 With certain exceptions not relevant here, G. L. c. 190B,
§ 5-101 (15) defines a "[n]ursing facility" as "an institution
or a distinct part of an institution which is primarily engaged
                                                                 14


will of the incapacitated person "except upon a specific finding

by the court that such admission is in the incapacitated

person's best interest."   G. L. c. 190B, § 5-309 (g).5

Accordingly, the appointment of a guardian over an incapacitated

person is necessary, but not by itself sufficient, to admit an

incapacitated person to a nursing facility against his or her

will.    Such an admission requires an additional order by the

court based on a specific finding that the admission is in the

incapacitated person's best interest.




in providing to residents: (i) skilled nursing care and related
services for residents who require medical or nursing care; (ii)
rehabilitation services for the rehabilitation of injured,
disabled or sick persons; or (iii) on a regular basis, health-
related care and services to individuals who because of their
mental or physical condition require care and services, above
the level of room and board, which can be made available to that
individual only through institutional facilities that are not
primarily a mental health facility or developmentally disabled
facility."

     5 We note that, if five conditions are met, G. L. c. 190B,
§ 5-309 (g) carves out an exception to the requirement that a
guardian may admit an incapacitated person to a nursing facility
only where a court specifically finds that admission is in the
incapacitated person's best interest. The five conditions are
"(1) the admission shall not exceed [sixty] days; (2) any person
authorized to sign a medical certificate recommends such
admission; (3) neither any interested person nor the
incapacitated person objects; (4) on or before such admission, a
written notice of intent to admit the incapacitated person to a
nursing facility for short term-services has been filed by the
guardian in the appointing court and a copy thereof has been
served in-hand on the incapacitated person and provided to the
nursing facility; and (5) the incapacitated person is
represented by counsel or counsel is appointed forthwith."
                                                                  15


    A Probate and Family Court judge does not have the

authority under the code to allow a hospital's request to admit

a patient to a skilled nursing facility against the will of the

patient where, as here, the judge has not found the patient to

be an incapacitated person and, therefore, has not appointed a

guardian for that patient.   Indeed, even if the judge here had

found D.C. to be an incapacitated person and appointed a

guardian for her, the guardian would still lack the legal

authority to admit D.C. to a nursing facility against her will

unless the judge granted the guardian that specific authority by

making a "specific finding" that it was in D.C.'s best interest

to be admitted to a nursing facility.

    Nor does a Probate and Family Court judge have the

authority under the code to appoint a limited guardian over a

person for the narrow purpose of admitting that person to a

nursing facility where the judge has not found the person to be

an incapacitated person.   To be sure, where a person is found to

be incapacitated, as defined in G. L. c. 190, § 5-101 (9), and

"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."   Guardianship of B.V.G.,
                                                                  16


474 Mass. at 322, quoting Uniform Probate Code prior § 5-306

comment, 8 U.L.A. (Part III) 186 (Master ed. 2013).   But that

limited authority cannot be granted to a limited guardian

without a finding that the person is an incapacitated person

and, where the decision is to admit the person against his or

her will to a nursing facility, without a specific finding by

the court that such admission is in the person's best interest.

Therefore, because the judge here made neither finding, the

judge erred in allowing the hospital's request to transfer and

admit D.C. to a skilled nursing facility.6

     Thus, we address the questions posed by the judge as

follows:

     1. A judge of the Probate and Family Court may not order a
     person to be admitted to a nursing facility against his or
     her will unless the judge appoints a guardian after finding
     that the person is an incapacitated person as defined in
     G. L. c. 190, § 5-101 (9), and then makes a specific
     finding that admission to a nursing facility is in the
     incapacitated person's best interest.

     2. A judge of the Probate and Family Court does not have
     the authority to appoint a limited guardian over someone
     who is not an incapacitated person for the sole purpose of
     admitting that person to a nursing facility.

     3. A judge of the Probate and Family Court does not have
     the authority to order someone who is not an incapacitated
     person to be transferred to a nursing facility.




     6 We do not address the legal options available to an acute
care hospital where a patient who is not incapacitated fails to
leave upon discharge.
                                                                   17


    Conclusion.     For the reasons given, the hospital's appeal

from the judge's order dated November 15, 2016, dismissing its

petition to appoint a guardian for D.C., is dismissed as moot,

and the subsequent report of the matter dated November 28, 2016,

is discharged.    See Dorfman, 386 Mass. at 138 (discharging

report that did not comply with G. L. c. 215, § 13).

                                     So ordered.
