COFAR blog

We reported last month about our efforts to help family members of persons with intellectual and developmental disabilities who have lost their guardianships and have found themselves legally outgunned in probate court.

In many cases, families can’t afford attorneys whose fees can run into the tens of thousands of dollars.

Even family members that do go into probate court with attorneys often feel outnumbered by the personnel arrayed against them there. Those opponents may not only include the attorney or attorneys for the Department of Developmental Services (DDS), but, in many cases, both the state-funded guardian appointed to replace the family member, and the state-funded attorney appointed to represent the intellectually disabled client.

In some cases, even the guardian ad litem (GAL), an attorney appointed to independently advise the judge, may take what appears to be a position against the family. We have seen cases before involving biased GALs.

In two cases in which we are currently involved, the GALs appear to have sided with DDS and with the state-appointed guardians and attorneys in seeking to remove the parents’ guardianships.

Probate judges open to allowing parents’ advocate to attend sessions

Last month, I contacted probate court clerks’ offices in Worcester and Woburn to see whether I could attend court sessions on behalf of the parents in those two cases. I received conflicting answers from the offices as to whether I, as a non-attorney, could appear as an advocate in the sessions.

However, when I did appear in court in those cases, the judge allowed me, in each case, to stay and stand at the counsel table alongside a mother who is seeking to regain her guardianship of her son.

In one of the two cases last month, Middlesex Probate Judge Thomas Barbar allowed me to speak on behalf of the mother, and then suggested that I “work with” her attorney as an advocate for her. It was encouraging, although it wasn’t quite clear whether I will be allowed to continue to address the judge directly in that case.

In the other case, Worcester Probate Judge Kathryn Bailey said she would allow me to be called as a witness for that mother when her case goes to trial, tentatively in February.

I came away from both sessions with a sense that my attending as an advocate from COFAR at least provided some independent weight to both parents’ positions before the court. Both sets of family members seemed to feel that way as well.

But the jury (no pun intended) may still be out on how effective a courtroom advocate, who is not an attorney, can be, and, perhaps ironically, whether I would be allowed to participate as an advocate if the person I am supporting does not have an attorney.

In that case, it seems possible that I might be seen as acting as the family member’s attorney, which would be illegal. I may, in those cases, only be allowed to attend the court session, and perhaps not speak.

A number of years ago, I tried to attend a probate court session in support of Stan McDonald, who had been seeking for years to regain guardianship of his intellectually disabled son. That case had been impounded, meaning the entire record was sealed from public disclosure, so the judge wouldn’t even let me in the courtroom. That was even though a previous judge had let me attend a previous court session in Stan’s case.

Supreme Judicial Court ruling may support non-attorney advocacy

But even in an impounded case, it seems it may be possible for an outside advocate to be called as a witness for a family member. Even in cases in which the parent or family member doesn’t have an attorney, I think it may be possible to argue that an advocate who is a non-lawyer can intervene as an “interested person.”

In a case known as “Guardianship of B.V.G.,” the Massachusetts Judicial Supreme Court held in 2016 that the grandfather of  a young, intellectually disabled woman had the right to intervene in a probate court proceeding in order to gain permission to communicate with her.

Even though the grandfather was not B.V.G.’s guardian and wasn’t an attorney, he was an “interested person” within the meaning of the state’s Uniform Probate Code, according to the SJC.  As such, he had the right to intervene in the probate court proceeding in order to remove restrictions on his contact with his granddaughter.

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.  The high court concluded that an individual can be considered an interested person under the 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.

So, I think I could argue that I should be allowed to intervene as an advocate in guardianship cases, based on the argument that I am similarly interested in the wellbeing of the incapacitated client.

DDS objects to our submission of information to the judge

In the two ongoing cases, I submitted written reports to the judges on behalf of the mothers, arguing for the return of their guardianships. It’s not clear if those reports have been accepted by the judges for consideration. In submitting the reports, I applied to “present information” to each judge, using a probate court application form that doesn’t specify that the presenter must be an attorney.

The application form further states that the “attached written statement (of information) is not evidence and that (the applicant) may be requested to testify at Court.”

However, in the Worcester Probate Court hearing, the DDS attorney filed a motion objecting to my submission of information in the case. John Geenty Jr., a DDS assistant general counsel, asserted in his motion that I have “no expertise”; that I have “no first-hand knowledge of the evidence” in the case, and that I was “trying to provide legal representation without a law license.”

During the court session, Judge Bailey allowed me to respond verbally to Attorney Geenty’s assertions. I noted that I have had more than 20 years’ experience in analyzing guardian cases and advising families and guardians in those matters, and that I was not claiming to be an attorney. The judge didn’t contradict me, and then said she would allow me to be called as a witness for the mother. As noted, it is not clear that the judge will consider the information that I submitted.

In the second case in Middlesex Probate Court, I submitted a rebuttal to the Guardian ad Litem’s report in that case, which had found the mother unfit to remain as her son’s guardian. I argued that the GAL’s report was deficient in not having included any interviews of clinicians or other witnesses who were supportive of the mother. As noted, it isn’t clear yet whether the judge in that case will take my report into consideration.

Difficulties in getting legal representation

We are, meanwhile, exploring other options for families such as contacting attorneys that provide pro bono representation.

As we previously reported, we have been trying to help a DDS client who told us she had been placed involuntarily under the guardianship of a DDS-funded provider agency. In that case, the client had asked that a longtime friend and former caregiver of hers become her guardian.

However, in December 2022, the Bristol Probate and Family Court appointed the Cooperative for Human Services, a corporate DDS provider, as the client’s guardian. The Cooperative has reportedly assigned an employee of the organization to provide guardianship services to the client, but the client told us she doesn’t even know who that appointed guardian is and has never met her.

Last month, I emailed four legal advocacy organizations to request that they represent the client in getting the guardian she wants.

I did receive a response on Wednesday (November 6) from the executive director of the Easthampton-based Center for Public Representation (CPR), who expressed interest in meeting with the client and “exploring the kind of help she is seeking.” We are trying to arrange that meeting now.

Two other legal advocacy organizations — the Boston-based Disability Law Center (DLC) and Brockton-based South Coastal Counties Legal Services —  stated that they either don’t or can’t handle guardianship cases, while a third — the National Center on Law and Elder Rights — hasn’t responded to us.

As we stated before, the DDS-probate court system appears to be broken in that it doesn’t respond well to families of DDS clients. It particularly doesn’t respond well to families that aren’t represented by attorneys. But we are hopeful that there are other ways in which we can help.

If anyone has any additional insights into these matters, please feel free to share them with us.