GUARDIANSHIP OF ZALTMAN.

LAURENCE, J. We address an issue of first impression that was left unanswered by the Supreme Judicial Court in Guardianship of Hocker, 439 Mass. 709, 716 n.14 (2003) (see note 9, infra): May a nonindigent ward who has been adjudged incapable of making her own medical decisions retain a lawyer to represent her in a petition under G. L. c. 201, §§ 13 and 13A, seeking to discharge her guardianship and remove her guardian on the grounds that the guardianship is no longer necessary because of changed medical circumstances and the guardian is not fulfilling her fiduciary duties? We hold that, in the circumstances of

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this case, the ward is entitled to an evidentiary hearing to determine whether she has the capacity to retain counsel for that purpose; if it is determined that she does not have such capacity, new, independent counsel must be appointed to represent her zealously in those statutory proceedings.

Background. A petition for guardianship of the person of Marsha Zaltman (hereinafter Ms. Zaltman or the ward) was brought by the petitioners, Anne LaFleur and Elizabeth MacLellan, [Note 2] on September 7, 2004. The petition indicated that the basis for the guardianship was mental illness rendering Ms. Zaltman incapable of taking care of herself and making her own medical decisions, and requested court authorization to treat her with antipsychotic medication. [Note 3] On September 8, 2004, a Probate and Family Court judge appointed Attorney Rosemary Eacmen to represent Ms. Zaltman (who is not indigent) for the requisite Rogers proceeding. See Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489 (1983). On October 27, 2004, the judge allowed a temporary guardianship of Ms. Zaltman and issued an order authorizing the hospital to perform

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spine surgery and administer antipsychotic medication to her. Ms. Zaltman underwent surgery for cervical stenosis on November 11, 2004.

A petition for permanent guardianship was then filed by the petitioners, and a hearing was held on February 1, 2005. In support of the guardianship, the petitioners submitted the affidavit as to competency and proposed treatment plan of Dr. Suzanne Cullinane, dated January 11, 2005. Dr. Cullinane's affidavit was the only medical evidence presented at the hearing. Attorney Eacmen "was present," although a question has been raised regarding the effectiveness of her representation at that hearing. [Note 4] The probate judge who had authorized the temporary guardianship

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determined (specifically relying on Dr. Cullinane's submissions) that Ms. Zaltman was "incapable of taking care of herself by reason of mental illness" and "not capable of making informed decisions regarding her medical treatment" and, applying the requisite substituted judgment analysis (see Rogers, supra at 499-507), determined that, if competent, Ms. Zaltman would choose to take the antipsychotic medication recommended by her physicians. Attorney Kathleen Moore was appointed permanent guardian of Ms. Zaltman's person and had the authority to monitor the administration of antipsychotic drugs. [Note 5] The court approved a treatment plan, to expire May 17, 2005, including such drugs. Neither the substituted judgment order nor the treatment plan order provided for periodic review of Ms. Zaltman's circumstances. See Guardianship of Weedon, 409 Mass. 196, 200-202 (1991).

After the surgery, Ms. Zaltman returned to her home, where she required outpatient care. That care was provided by Joanne Wooldridge of PrimeCare from November, 2004, to April, 2005, when Attorney Moore terminated the services. Sometime in June, 2005, Ms. Zaltman's physicians (Dr. Cullinane and Dr. Anthony Erdmann) informed her (so she averred in her affidavit) that she no longer needed a guardian. Ms. Zaltman thereupon decided to petition for discharge of the guardianship and retained Attorney Laura A. Sanford to represent her. On June 28, 2005, Attorney Sanford filed a petition for discharge of the guardian and termination of the guardianship on behalf of Ms. Zaltman, asserting that Ms. Zaltman was now capable of managing her own affairs. On August 12, 2005, Attorney Sanford filed an emergency motion for outpatient care, which was being denied Ms. Zaltman by her guardian, and an emergency motion for discharge of the guardianship as it was no longer necessary by virtue of Ms. Zaltman's then-present competence and conduct of the guardian detrimental to her well-being. Supporting the emergency motions was an affidavit from Dr. Cullinane, the same doctor on whose medical opinion the judge had relied at the permanent guardianship hearing.

In her affidavit, Dr. Cullinane concluded that, "It is my

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opinion to a reasonable degree of medical certainty that Ms. Zaltman is [now] competent to make informed decisions regarding her care and treatment. She is rational and competent. She does not suffer from a major depressive disorder. She is organized in her thoughts and able to discuss and weigh the risks and benefits of her current treatment and outpatient care. Ms. Zaltman has an astute understanding of what is going on around her." Dr. Cullinane also observed that Dr. Erdmannn (whom Ms. Zaltman had seen several times for psychiatric evaluation and treatment) "has been of the opinion that Ms. Zaltman is competent and does not need a guardian since he first met with her about two months ago . . . [and] he has not changed his opinion." Dr. Cullinane also recommended that Ms. Zaltman work with Ms. Wooldridge of PrimeCare for outpatient care because the "alliance was clinically very beneficial for Ms. Zaltman." Dr. Cullinane stated that "Ms. Wooldridge has demonstrated her interest and involvement in Ms. Zaltman's case since the termination [of PrimeCare's services by the guardian] by staying in contact with Ms. Zaltman and with me up to the present time" and that "PrimeCare's services will provide the means for Ms. Zaltman to remain independent." The guardian, however, has refused to reinstate care from Ms. Wooldridge or PrimeCare. [Note 6]

Hearings on the emergency motions were scheduled for August 17, 2005. On August 12, 2005, counsel for the petitioners, Attorney William Carroll, filed a motion to strike the appearance of counsel (Attorney Sanford). [Note 7] On August 17, 2005, the hearing was convened before a second probate judge. Present were Attorneys Carroll (for the petitioners), Eacmen, and Sanford, as well as the guardian, Attorney Moore. Instead of addressing the scheduled emergency motions, however, the judge allowed the motion to strike appearance of counsel, citing Guardianship of Hocker, 439 Mass. 709, and stating several

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times that Ms. Zaltman, being under guardianship, "doesn't have the capacity" to hire an attorney, and adding that Ms. Zaltman "does not have the capacity to file anything." The judge cut off Attorney Sanford's attempt to present argument and denied her request for an evidentiary hearing.

Upon Attorney Eacmen's representation that she remained the ward's lawyer, the judge stated, "Ms. Eacmen, you're her representative. I expect that if there's any reason to terminate the guardianship you will bring that forward." No reference was made to Ms. Zaltman's or Dr. Cullinane's affidavit at any point during the hearing. To date, Attorney Eacmen has done nothing on Ms. Zaltman's behalf to discharge the guardianship or the guardian, to reinstate PrimeCare's services, to address the fact that the treatment plan expired as of May 17, 2005, or to seek periodic review of either the plan or the substituted judgment order. [Note 8]

On August 25, 2005, Attorney Sanford filed a motion for reconsideration of the August 17 order striking her appearance and again requested a hearing, specifically relying on a footnote in Guardianship of Hocker, supra at 716 n.14. [Note 9] Attached to the motion was an affidavit from Ms. Zaltman expressing her dissatisfaction

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with Attorney Eacmen's representation (see note 4, supra). In her affidavit, Ms. Zaltman stated, "I do not want Attorney [Eacmen] to represent me in the petition to discharge my guardian, Kathleen Moore. . . . I want attorney Laura Sanford to represent me." The motion for reconsideration was denied on September 13, 2005, without findings, a hearing, or an opposition.

Discussion. Reversal is mandated in consequence of the second judge's declining to act on the emergency motion for discharge of the guardianship, and allowing the motion to strike appearance of counsel, all without the benefit of an evidentiary hearing. The underlying problem is reflected in the judge's pronouncement that "[t]he ward does not have the capacity to file anything." The judge thereby denied the ward her right to petition for removal of the guardianship, a right explicitly provided for and protected by statute. See G. L. c. 201, § 13, as appearing in St. 1956, c. 314, § 5 ("The guardian of a mentally ill . . . person . . . may be discharged by the probate court, upon the application of the ward or otherwise, when it appears that the guardianship is no longer necessary . . . ."); G. L. c. 201, § 13A, as appearing in St. 1974, c. 845, § 8 ("A mentally ill person under guardianship . . . may file a petition for the removal of such guardian . . . ."); Guardianship of Roe, 383 Mass. 415, 426 (1981) ("If an individual is erroneously subjected to guardianship, then G. L. c. 201, § 13A, allows

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such a ward to file a petition for the removal of his guardian").

Hocker, 439 Mass. at 716 & n.14, upon which the judge relied, actually highlighted the importance of those fundamental rights of a mentally ill person in circumstances like those presented to the judge here, manifesting conflict or adverse relations between the guardian and the ward, "when a petition for removal is filed, and the alleged failure of the guardian to fulfill her fiduciary duties to the ward is [put] at issue." By peremptorily denying the ward the opportunity to vindicate her statutory rights and by ignoring evidence that at least raised the issue of a significant change in circumstances, [Note 10] the judge failed to discharge her "ultimate decision-making responsibility" when "dealing with matters concerning a person properly under the court's protective jurisdiction," armed with inherent power "to act in the best interests of a person under its jurisdiction" so as "to afford whatever relief may be necessary to protect [such person's] interests." See Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 755, 756, 758 (1977) (quotations and citations omitted). See also Matter of Spring, 380 Mass. 629, 641 (1980) ("even a [remote] possibility of some change of circumstances might warrant reconsideration"). The judge's rulings thus effectively denied the ward her opportunity to discharge her burden of proving her capacity and of justifying modification of the guardianship order. See Sullivan v. Quinlivan, 308 Mass. 339, 342 (1941); Rogers, 390 Mass. at 507.

Furthermore, in such cases a judge has an obligation that was not here discharged, that of personally ascertaining the ward's desires and intentions. "An individual's stated preference has traditionally been considered a 'critical factor' by courts in determining matters of guardianship. Guardianship of Roe, 383 Mass. [at 445]. See Allis v. Morton, 4 Gray 63, 64 (1855) ('it would be the duty as well as the pleasure of the court anxiously

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to consult' the ward as to his preference of guardian) . . . ." Guardianship of Smith, 43 Mass. App. Ct. 493, 499 (1997). "Even if [the ward] lacked the capacity to make [her own] treatment decisions at the time, [her] expressed preference 'must be treated as a critical factor in the determination of [her] "best interests," ' . . . since it is the patient's true desire that the court must ascertain." Rogers, supra at 505, quoting from Guardianship of Roe, 383 Mass. at 445. "[P]rocedural intricacies and technical niceties must yield to the need to know the actual values and preferences of the ward." Guardianship of Roe, 383 Mass. at 444.

This general judicial obligation to consult the ward was heightened here by the ward's own affidavit attesting to her regaining of competence and to her adverse, if not hostile, relations with both the appointed guardian and the appointed attorney, as well as the corroborating affidavit of the principal psychiatrist in the matter. Those submissions, reflecting not merely the existence of adversary proceedings and fiduciary conflict but also genuine questions regarding the ward's competence, cried out for inquiry of the ward and further evidentiary investigation by the judge. The failure to do so constituted error. Contrast Hocker, 439 Mass. at 716, 717, 719 (no conflict alleged between ward and guardian, no adversary proceedings initiated by ward, no request for evidentiary hearing by ward or counsel on the outstanding motions, and no direct evidence of change in ward's mental condition).

A third fundamental flaw was that the judge's approach in the proceedings below appeared to assume that the ward's condition was fixed and unchanging, notwithstanding the facts that there had been no periodic review of the substituted judgment and treatment plan orders (as should have been ordered but was not) and that the determination of Ms. Zaltman's incapacity was "relatively remote in time," having been made almost ten months before the August 17, 2005, hearing. Compare Guardianship of Pamela, 401 Mass. 856, 857-858 (1988) (there, the "relatively remote" adjudication of incompetence had been made eight months prior to the court's determination,

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after evidentiary hearing, that the ward's capacity to make treatment decisions had returned). [Note 11]

Simply because at an earlier point Ms. Zaltman had been found "incapable of taking care of herself by reason of mental illness" did not make a foregone conclusion, much less an established legal proposition, that she did not possess the competency necessary to select counsel. It is well settled that our law recognizes various levels of competency. See Talbot v. Chamberlain, 149 Mass. 57, 59 (1889) ("Both acts [of changing domicile and of making of a will] require competent mental capacity, and the decree of guardianship [of the ward on the basis of his insanity] is not conclusive of the want of capacity to do either act"); Matter of Moe, 385 Mass. 555, 567-568 (1982) ("A person may be adjudicated legally incompetent to make some decisions but competent to make other decisions"); Rogers, 390 Mass. at 495, 497 ("A person may be competent to make some decisions, but not others. . . . [Even] a person diagnosed as mentally ill and committed to a mental institution is still considered to be competent to manage his personal affairs"); Guardianship of Bassett, 7 Mass. App. Ct. 56, 63 (1979) (mentally retarded person requiring guardianship nevertheless had "decision-making capability" as to "some but not all of his personal affairs"). Cf. Ensign v. Faxon, 224 Mass. 145, 147 (1916) (court observed that insane person under guardianship personally had retained attorney who filed legal proceedings and rendered services in connection with the guardianship).

Similarly, as previously noted, supra, our courts have repeatedly held that a mentally ill person may still possess the faculties to have an informed opinion about her treatment. See Doe v. Doe, 377 Mass. 272, 278-279 (1979), quoting from Allis v. Morton, 4 Gray at 64 ("A man may be insane so as to be a fit subject for guardianship, and yet have a sensible opinion and strong feeling upon the question who that guardian shall be. And that opinion and feeling it would be the duty as well as the

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pleasure of the court anxiously to consult, as the happiness of the ward and his restoration to health might depend upon it"); Guardianship of Roe, 383 Mass. at 445 (same); Matter of Spring, 8 Mass. App. Ct. 831, 838 (1979), S.C., 380 Mass. 629 (1980) ("when a person becomes incompetent to formulate a lucid judgment he is not thereby stripped of the right of choice enjoyed by others in the making of treatment decisions"). The fact that Ms. Zaltman was earlier found "incapable of taking care of herself by reason of mental illness" did not mean that she remained indefinitely incompetent to choose and hire (at her own expense [Note 12]) an attorney to represent her interests, even were there no evidence of a significant change in her mental condition. [Note 13]

In addition, the initial determination of Ms. Zaltman's incompetency had been made over ten months before the hearing at issue (and the adjudication as to a permanent guardianship over six months earlier), and it is well established that a person's competency can change over time. See Matter of Spring, 380 Mass. at 641 (recognition that the competency of even a profoundly disoriented ward might change over a nine-month period; however "remote . . . even a possibility of some change of circumstances might warrant reconsideration"); Guardianship of Pamela, 401 Mass. at 858 (eight-month interval between incompetency adjudication and determination of renewed competency). The very existence of a statutory procedure to terminate a guardianship necessarily implies that a person's incompetency may not remain static. See G. L. c. 201, §§ 13, 13A. Similarly, the factors utilized in determining a

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ward's substituted judgment also may change over time. See Guardianship of Linda, 401 Mass. 783, 785-787 (1988). This reality is supposed to be embedded in the substituted judgment and the treatment orders themselves, which "must provide for periodic review of the treatment plan and of the patient's circumstances in order to ensure the appropriateness of the plan and the careful protection of the patient's rights." Guardianship of Weedon, 409 Mass. at 201 ("the patient's mental condition . . . may change significantly with the passage of time, thus rendering the substituted judgment determination inaccurate[, necessitating] [p]eriodic review").

In this case, the lack of judicial recognition that the documents placed before her presented "a genuine question" as to the possibility of some change of circumstance and raised a "duty . . . to ascertain the fact" as to the ward's competence, Gershaw v. Gershfield, 52 Mass. App. Ct. 81, 96 (2001), quoting from Sullivan v. Judges of the Superior Ct., 271 Mass. 435, 437 (1930), was error. The "crucial issue" in such proceedings is "whether [the ward] was currently [emphasis in original] incapable of making informed treatment decisions" and ascertaining the "ward's current [emphasis supplied] mental condition." Guardianship of Pamela, supra. See Guardianship of Jackson, 61 Mass. App. Ct. 768, 772-773 (2004). The consequences of the judge's lack of response to the ward's petition for discharge and supporting evidence, against the background of an absence of provision for, much less actual, periodic review, was inconsistent with "the careful protection of the [ward's] rights," Guardianship of Weedon, supra, that should have been the judge's primary concern. [Note 14]

That the judge expressed her expectation at the August 17, 2005, hearing that Attorney Eacmen would bring a petition to discharge the guardianship "if" there was any reason to do so was, in the circumstances, not sufficient to protect the ward's

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rights. First, it is questionable whether Attorney Eacmen any longer actually or meaningfully represented the ward. The record indicates that she was appointed to represent Ms. Zaltman only for purposes of the Rogers proceeding, [Note 15] the notice of assignment of counsel concisely limiting her charge to "Rogers"). The restricted nature of the appointment is consistent with the subsequent affidavit of Ms. Zaltman, who averred that when she called Attorney Eacmen after the permanent guardianship hearing, the attorney informed her that "she had nothing further to do with me." Attorney Eacmen's representation to the judge at the August 17, 2005, hearing, that she "still represented" Ms. Zaltman did not make the purported continued representation so, as matter of law. [Note 16]

Even if Attorney Eacmen continued to have authority to represent Ms. Zaltman after the Rogers proceeding and the finding of incompetency, in light of the high fiduciary nature of such a representation the judge should have, on the reconsideration motion, examined the attorney's actual participation in the case to determine whether she adequately represented Ms. Zaltman's interests -- an exploration made more urgent by Ms. Zaltman's serious charges that Attorney Eacmen failed to (1) inform her that she had a right to an independent evaluation; (2) call any witnesses on her behalf at the permanent guardianship hearing; (3) prepare her to testify; (4) inform her of her right to appeal the adverse decision; and (5) explain to her the ramifications of the decision or assist her in any way after that decision. [Note 17] See note 4, supra. From all that appears, Attorney

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Eacmen (who did not participate in the instant appeal, see note 4, supra) did nothing to investigate or pursue the merits of the petition to discharge the guardianship or initiate her own petition, notwithstanding the material corroborating medical evidence, i.e., Dr. Cullinane's opinion and Dr. Erdmann's reported opinion that Ms. Zaltman had, as she claimed, regained competence. Should the ward's allegations prove true, it would be difficult to justify the failure of an attorney, charged with the fiduciary obligation of zealously representing a ward, to act in these circumstances.

In sum, on these facts, the judge's failure to hold a hearing at least to determine whether the ward was competent to retain an attorney to challenge the continuation of the guardianship constituted error of law that effectively gutted the protective provisions of G. L. c. 201, §§ 13 and 13A (if not, as argued by Ms. Zaltman, violated her due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of our Declaration of Rights, compare Towne v. Hubbard, 3 P.3d 154, 159-161 [Okla. 2000] [recognizing that guardianship is a significant restriction of a person's liberty and holding that there is a due process right to select one's own attorney in a guardianship proceeding]).

Contrary to the petitioners' principal contention (and the judge's sole legal reliance), the Supreme Judicial Court's recent opinion in Guardianship of Hocker does not support the judge's actions. Indeed, we view our decision as consistent with, and a logical and necessary extension of, Hocker. The court's rationale in Hocker was grounded on the fact that there were no adversary proceedings pending between the guardian and the ward (an observation the court reiterated four separate times). The court held, 439 Mass. at 717, that "[w]hen no adversary proceedings have been initiated, due process does not require that a ward be able to consult with counsel [of her choice] about [her]

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guardianship." The court explicitly refused, however, to pass on the question of the ward's right to independent counsel when the interests of the guardian and the ward were procedurally adverse (see note 9, supra) but plainly intimated that the result might well be different in such a situation. Hocker, 439 Mass. at 716 n.14.

The question that the Supreme Judicial Court was not faced with in Hocker, as noted earlier, is squarely presented here. Consistently with Hocker, we hold that the integrity of the statutory process for protecting a ward's rights in a guardianship requires that a nonindigent ward who has been adjudged incompetent to make her own medical decisions be given the opportunity to demonstrate that she is competent to select and retain counsel of her own choosing [Note 18] to challenge her guardianship when there is evidence that the interests of the guardian and ward are adverse and that the ward may have recovered her competency. [Note 19]

Finally, we observe that our holding comports with the guarantees of equality set forth in art. 1 of our Declaration of Rights and recognized in our decisional law. An incompetent person, like all other individuals, is entitled to equality and

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respect. [Note 20] See Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. at 747 ("The trend in the law has been to give incompetent persons the same rights as other individuals"); Hocker, supra at 715 ("an adjudication of incompetency . . . does not make the ward any less worthy of dignity or respect in the eyes of the law than a competent person").

Consequently, we vacate the judge's August 17, 2005, order that effectively denied the ward's petitions for discharge of the guardianship, as well as the judge's September 13, 2005, order denying the ward's motion for reconsideration, and remand the case for the following proceedings. An evidentiary hearing must be held to determine whether Ms. Zaltman is competent to retain counsel to act on her behalf in challenging the guardianship and seeking removal of the present guardian. In connection with that evidentiary hearing, independent counsel must be appointed to represent Ms. Zaltman. If it is determined that Ms. Zaltman is competent to retain counsel, she may hire counsel of her choosing, including Attorney Sanford, to press her petitions. If Ms. Zaltman is determined not to be competent to retain counsel, independent counsel must be assigned to her (the selection of counsel to be in the judge's discretion but exercised in light of this decision). Regardless of the outcome of that hearing, based upon the evidence of changed medical circumstances presented in the record, Ms. Zaltman shall be afforded, as soon as feasibly possible, an evidentiary hearing either on the basis of her petition to discharge the guardianship or as a periodic review of the substituted judgment and treatment plan orders, at which she should be represented by counsel (of her choosing or appointed by the court, as may be appropriate) and have the opportunity to present additional evidence as to her competency.

So ordered.