GUARDIANSHIP OF LON HOCKER.

MARSHALL, C.J. We are asked to determine whether a judge in the Probate and Family Court erred in allowing a motion of a guardian to strike the notice of appearance of an attorney, which had purportedly been filed on behalf of the guardian's mentally

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incompetent ward. See G. L. c. 201, § 6. [Note 1] The attorney, Kathy Pett Ryman, filed the appearance against the wishes of the court-appointed permanent guardian, Priscilla Claman (guardian), who is the daughter of the ward, Lon Hocker. No litigation involving either the guardian or the ward was pending when Ryman filed her appearance. [Note 2] On appeal, [Note 3] the ward claims that (1) despite being adjudicated mentally incompetent, he has an ongoing right to his own counsel under Massachusetts statutory and constitutional law; (2) Ryman, as his former counsel in the guardianship proceedings, has a continuing ethical duty to represent him; and (3) he is entitled to an evidentiary hearing concerning his competency to retain counsel of his choice. We transferred this case from the Appeals Court on our own motion. For the reasons set forth below, we affirm the order of the probate judge.

1. Background. We summarize the undisputed facts contained in the judge's written memoranda on the petition for guardianship and the motion to strike Ryman's appearance. On August 17, 1999, Claman petitioned for permanent guardianship of her father on the grounds that he had become mentally incompetent

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and unable to care for himself. A judge in the Barnstable Division of the Probate and Family Court appointed Claman temporary guardian. See G. L. c. 201, § 14. As temporary guardian, Claman later sought, and was granted, the authority to monitor the administration of antipsychotic medications to Hocker in accordance with a specific treatment plan, see Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489 (1983) (Rogers); she was not authorized to commit Hocker to long-term placement in a mental health or nursing home facility except on further order of the court. In accordance with the statute governing Rogers proceedings, the judge appointed Ryman to represent Hocker's interests. See S.J.C. Rule 3:10, as appearing in 416 Mass. 1306 (1993).

On March 9, 2000, following a trial in which Hocker (represented by Ryman) and his son, Lon Hocker, III (son), contested Claman's appointment as permanent guardian, [Note 4] the judge found that Hocker, then eighty-nine years of age, suffered from multi-infarct dementia with agitation. [Note 5] He also found that Hocker "was not capable by reason of . . . mental illness of caring for himself" and that he did "not have the present ability to make informed decisions regarding his psychiatric treatment, including, but not limited to, treatment with anti-psychotic medication and admission to a mental health hospital or institution." The judge appointed Claman permanent guardian of Hocker's person. [Note 6] He noted that Claman had served as temporary guardian "with distinction" and concluded that she was "the most appropriate person to serve" as permanent

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guardian. The judge declined, however, to give Claman permanent "stand by authority" to administer antipsychotic medications. The judge exhorted the family to "work together in the future to ensure that [Hocker] is able to experience the quality of life to which he is entitled." He admonished family members that they "not interfere with the guardian and care giver's ability to implement the treatment plan." There was no appeal from the guardianship decree.

Following Claman's appointment as permanent guardian and because Ryman had completed her duties relative to the guardianship proceeding, on June 11, 2001, the judge vacated Ryman's appointment nunc pro tunc to March 9, 2000, the date of the decree of permanent guardianship. The next day, June 12, 2001, Ryman filed a notice of appearance, purportedly on behalf of the ward. No pleading accompanied the notice of appearance. See note 2, supra. On June 18, 2001, the ward's son filed a pro se notice of appearance. On July 5, 2001, the guardian filed a motion to strike Ryman's notice of appearance, which was opposed by the son and by Ryman. [Note 7] On August 22, 2001, following a hearing, [Note 8] the judge allowed the guardian's motion. [Note 9] He concluded that Hocker, as a person adjudicated mentally incompetent and in need of a permanent guardian, was unable to think or act for himself as to matters concerning his person or property and that "the level of assessment and reasoning

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required to make informed legal decisions, exceeds Hocker's ability as diagnosed by his physicians." He noted that any concerns regarding Claman's fitness to serve as guardian could be addressed by an action to remove Claman pursuant to G. L. c. 201, § 13A. [Note 10] Among other things, the judge ordered Ryman to refrain from contacting or having "any interactions" with the ward regarding legal matters without the guardian's knowledge and consent, or further court order. On October 31, 2001, at Ryman's request, the judge amended his order to permit Ryman to consult with the ward for the sole purpose of prosecuting this appeal, ruling that contact between Ryman and the ward should be allowed "in the interest of justice and due process" because the matter ultimately concerns the ward's liberty interests in managing his own affairs.

2. Due process. The ward claims that the judge's order striking Ryman's notice of appearance effectively barred him from meaningful access to the courts, in violation of his due process rights. He has "a constitutionally protected liberty interest," he asserts, "in being left free to retain counsel of his choice, despite a finding that he is incompetent to make ordinary medical decisions about his own care." The ward misapprehends the nature and scope of guardianship, and of his due process rights in these circumstances.

We reject at the outset the contention that either the scope of Claman's guardianship or the judge's determination of incompetency was limited to the ward's medical care. Nothing in the guardianship decree suggests that the guardianship of the ward's person was limited or restricted. See Guardianship of Bassett, 7 Mass. App. Ct. 56, 67 (1979) (judge could properly exercise his powers to appoint guardian "for limited purposes and with specified responsibilities"). The provisions in the decree stating that the guardian could not, without further court order, commit the ward to a long-term care facility or forcibly administer antipsychotic medication to him merely restate the limits of a guardian's general power, as expressed by statute and determined by prior decisions of this court. See G. L. c. 201, § 6; Rogers v. Commissioner of the Dep't of Mental Health, supra

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at 491; Guardianship of Roe, 383 Mass. 415, 434-443 (1981).

Pursuant to G. L. c. 201, § 6, Hocker was adjudicated incompetent and in need of a permanent guardian because he was determined to be (1) incapable of taking care of himself, (2) by reason of mental illness. See Fazio v. Fazio, 375 Mass. 394, 399 (1978) (error to appoint permanent guardian where individual was not found to be incapable of taking care of himself by reason of mental illness). The judge reached that determination after a trial at which Hocker and others testified on his behalf, and in which he was represented by Ryman. That Hocker's dementia and his inability "to think or act for himself as to matters concerning his personal health, safety, and general welfare," id. at 403, were proved by a preponderance of the evidence is amply shown in the judge's detailed and specific findings, from which there has been no been appeal. See Guardianship of Roe, supra at 425 (detailed findings of fact must accompany determination of incompetency).

When a person is adjudicated incompetent, as Hocker has been, "[t]he necessary effect . . . is that the ward is in law . . . incapable of taking care of himself, as to all the world." Fazio v. Fazio, supra at 399-400, quoting Leggate v. Clark, 111 Mass. 308, 310 (1873). The permanent guardian stands in the place of the ward in making decisions about the ward's well-being, and the guardian is held to high standards of fidelity in exercising this authority for the ward's benefit. [Note 11] See, e.g., Dolbeare v. Bowser, 254 Mass. 57, 61 (1925) (guardian's "authority and

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interest extend only to such things as may be for the benefit or advantage of the ward"); Smith v. Smith, 222 Mass. 102, 106 (1915) (relationship between guardian and ward is fiduciary as matter of law). To be sure, an adjudication of incompetency under G. L. c. 201, § 6, does not obviate the need for a guardian or a judge to consult a ward's feelings or opinions on a matter concerning his care. See Doe v. Doe, 377 Mass. 272, 279 (1979). It does not make the ward any less worthy of dignity or respect in the eyes of the law than a competent person. See Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 745 (1977). It does not deprive the ward of fundamental liberty interests. See Guardianship of Doe, 411 Mass. 512, 517-518, cert. denied sub nom. Doe v. Gross, 503 U.S. 950 (1992). But the rights and interests of one adjudicated to be incompetent must of necessity and "for the benefit or advantage of the ward," Dolbeare v. Bowser, supra at 61, often be vindicated in a manner different from that of the mentally competent. Few would disagree, for example, that a mentally incompetent person's freedom to travel could be determined by the guardian, or that the ward's freedom to engage in an occupation could be similarly restricted by the guardian. [Note 12]

Although the ward argues that the guardian could not be the "sole authority" over the ward, and an attorney is needed to "protect" the ward from harm, the judge has selected the guardian as the individual most suitable to make decisions on the ward's behalf. That selection has not been appealed. It is

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important to note that, contrary to Ryman's contentions, the judge's order striking her notice of appearance did nothing to limit the ward's statutory and due process rights of access to the courts. The ward and his family members remain free to challenge Claman's fitness as guardian or the ward's continued need for a permanent guardian of his person. See, e.g., G. L. c. 201, §§ 6, 13, 13A. [Note 13]

Nor does the order deprive the ward of the ability to retain counsel as contemplated by Massachusetts law and the requirements of due process. We agree that, in certain circumstances where the guardian faces a conflict or a likelihood of conflict with a ward, Massachusetts law contemplates that the ward be represented by independent counsel. [Note 14] Those circumstances are not present here, and they do not create a generalized and continuing "right to counsel of one's choosing" for a person

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adjudicated under our laws to be mentally incompetent. [Note 15] The judge's order striking Ryman's notice of appearance merely prevents Ryman from using the cover of court imprimatur to monitor, on an ongoing basis and purportedly on the ward's behalf, [Note 16] the activities of Claman as guardian. Given the judge's specific finding that the ward lacked the capacity because of his dementia to make reasoned legal decisions on his own behalf, as well as the judge's findings concerning the history of family tension over Claman's role as guardian, the judge's order was prudent. It was well within the judge's authority to shield an extraordinarily vulnerable individual from becoming an unknowing instrument to subvert the authority of the court-appointed permanent guardian. In short, when no adversary proceedings have been initiated, due process does not require that a ward be able to consult with counsel about his guardianship.

3. Attorney's ethical duties. Contrary to the ward's arguments, we conclude that Mass. R. Prof. C. 1.14, 426 Mass. 1361 (1998), [Note 17] imposes no affirmative duty on an attorney appointed by a judge during guardianship proceedings to continue

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to represent her client after the judge has adjudicated the client to be mentally incompetent, appointed a permanent guardian for the client, and vacated the appointment.

Rule 1.14 governs a lawyer's ethical duties of continued representation to a client whose reasoning has become impaired, by mental incompetence or otherwise. Comment [2] to rule 1.14 instructs the lawyer of a client who has a guardian or legal representative to "as far as possible accord the represented person the status of client, particularly in maintaining communication." [Note 18] The ward argues that rule 1.14, as seen through the gloss of comment [2], contemplates the indefinite continuation of the attorney-client relationship after the appointment of a guardian. See comment [2] to rule 1.14. Manifestly, the rule does not contemplate the continuation of an attorney-client relationship where, as here, a judge has vacated his limited and specific appointment of the attorney. Moreover, the ward ignores the admonition of comment [3], which states: "If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client." [Note 19] Comment [3] to rule

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1.14. [Note 20] The ethical dilemma posited by the ward does not exist.

4. Evidentiary hearing. We reject the ward's argument that the judge erred in declining to hold an evidentiary hearing on the guardian's motion to strike Ryman's notice of appearance. The record on appeal, including the record of the hearing on the motion to strike, reveals that Ryman did not request an evidentiary hearing on the motion. She is not entitled to raise the issue for the first time on appeal. See, e.g., Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977); Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976). Even if she had requested an evidentiary hearing, the record before us indicates the judge would have been well within his discretion to deny such a request. No underlying action was pending before the court. The ward did not attend the hearing on the motion to strike, see note 8, supra, and the record does not disclose that any continuance was sought to allow his attendance. The only evidence proffered on behalf of the claim that the ward had regained his ability to make decisions regarding his legal affairs was a copy of an internet posting entitled "New Possibility of Brain Cell Regeneration in Alzheimers Disease" by a support group, submitted as an exhibit to the son's affidavit. In his affidavit, moreover, the ward's son stated that he agreed that his father still needed a guardian, but proposed that he himself be named coguardian with his sister. Any indication of a change in Hocker's mental condition was thus "skimpy" and insubstantial, at best, see Adoption of Marc, 49 Mass. App. Ct. 798, 800 (2000), and "[w]e would be hard pressed to detect any unfairness in the manner in which the issue of relief was handled in view of the . . . failure . . . to assist the judge in any meaningful way." Demoulas v. Demoulas, 428 Mass. 555, 590 (1998), S.C., 432 Mass. 43 (2000).

Order affirmed.