COFAR blog

In a decision that could boost the rights of family members in guardianship disputes, the Massachusetts Supreme Judicial Court ruled last month that the grandfather of  a young, intellectually disabled woman has the right to intervene in a probate court proceeding in order to gain permission to communicate with her.

It appeared the ruling could be applied to other ongoing probate court cases in which family members have been excluded from contact with loved ones in the care of the Department of Developmental Services.

The woman in the case before the SJC was identified as B.V.G.  The SJC ruled that even though the grandfather was not B.V.G.’s guardian, he was an “interested person” within the meaning of the state’s Uniform Probate Code.  As such, he had the right to intervene in the court proceeding in order to remove restrictions on his contact with his granddaughter.

According to the SJC ruling, B.V.G. had had a “strong relationship” with her grandfather, which both B.V.G. and the grandfather wished to maintain. However, B.V.G.’s father, who was appointed as her permanent guardian, had sought to sharply restrict or prohibit her contact with her grandfather, and, in fact, with all of her other maternal relatives.

COFAR has reported on a number of cases in which guardians of DDS clients have either made or upheld decisions to restrict contact and visitation rights of family members. Those cases have stemmed from the appointment of attorneys and other non-family members as guardians.

In the B.V.G. case, the restrictions on the grandfather’s contact with his granddaughter were imposed by another family member.  The SJC ruling noted that the grandfather had been permitted by the father to send B.V.G. only one email message per day, and to receive no more than one email message from her.  But the woman did not have access to email at the residential facility where she lived, so the grandfather and granddaughter effectively had no contact with each other.

The SJC noted that the Uniform Probate Code (which is contained in the state’s general laws) allows anyone defined as an “interested person” to intervene in a guardianship proceeding in probate court.  A probate court judge had previously ruled in the case that the grandfather of B.V.G. was not an interested person because he was not her guardian and because he did not demonstrate that he had a financial stake in the court proceeding.

But the SJC concluded that an individual can be considered an interested person under the Uniform Probate Code simply by being interested in an incapacitated person’s well-being.  As such, the grandfather of B.V.G. was clearly an interested person, the high court concluded.

In one ongoing case on which COFAR has reported, Stan McDonald, the father of a 49-year-old intellectually disabled man, has been fighting for increased contact with his son, including visits by Andy to Stan’s home.  Stan’s son, Andy, lives in a group home.  Andy is currently barred from such visits, under a 2006 probate court order, which concluded he was dangerous.

COFAR has reported that the 2006 court order contained a number of factual misrepresentations regarding Andy’s alleged dangerousness.

While it would appear that Stan McDonald would be considered under the Uniform Probate Code to be an interested person in his son’s guardianship, Stan has been told that he has no right even to request home visits from Andy or to discuss such visits with him.  Stan has even been threatened with contempt of court for doing so.

Stan’s wife, Ellen, who is Andy’s step-mother, was not permitted to attend a recent probate court hearing on the appointment of a new guardian for Andy, even though she, too, appears to meet the SJC’s interpretation of an interested person in the case.

As interested persons, it would seem that the McDonalds should have input into the terms of Andy’s contact with them.  Although the 2006 court order barred home visits for Andy due to his alleged dangerousness, the McDonalds have repeatedly called for an independent clinical evaluation of Andy.  Their requests have seemingly been ignored, possibly because they have not been considered to have standing in the case.

As we have noted, not only was the 2006 court order banning Andy’s home visits based on factual misrepresentations in the record, but Andy’s general behavior has greatly improved since that decision was issued.

Both the SJC and the Appeals Court noted in the B.V.G. case that the Uniform Probate Court requires that an incapacitated individual’s changed behavior and “expressed desires” be considered in decisions made by their guardians.

The Appeals Court pointed out that not only should a guardian consider the incapacitated person’s expressed desires, but the guardian has a duty to immediately notify the court if the person’s “condition has changed so that he or she is capable of exercising rights previously limited.”

Andy has repeatedly expressed his desire to visit his parents’ home, and even told a probate court judge of his wish last October.  As noted, his behavior has changed since 2006.  We are not sure that the probate court has been notified about that. We sent a letter about those issues to the former and current judges handling the McDonald case in Middlesex Probate Court, but have received no indication whether our letter would be accepted into the court record.

By the way, in its amicus brief in the SJC case, the Massachusetts Arc also supported the idea of a family member or friend having the right to intervene in a guardianship proceeding “in order to accommodate the inevitable changes during the lifetime of the person under guardianship.” (our emphasis.)

It isn’t clear to us how the SJC decision will affect cases such as the McDonald case, but we hope that it will lead to a change of attitude within both the probate court system and DDS regarding the rights and standing of family members in guardianship cases.

The attorney 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…”  That presumption needs to change.