Guardianship of W.T.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-449

GUARDIANSHIP OF W.T.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a judge of the Probate and Family Court

found the respondent, W.T., to be an incapacitated person, and

entered a decree and order pursuant to G. L. c. 190B, § 5-306

(b), appointing a limited guardian to, amongst other things,

monitor the administration of W.T.'s antipsychotic medications.

The treatment plan authorized the administration of Haldol

decanoate (a long-acting medication administered via injection),

with authorization for the use of daily oral doses of Haldol,

daily oral doses of Risperdal (Risperidone), or monthly

injections of Invega Sustenna (Paliperidone Palmitate) as

"alternative antipsychotic medication[s]."

W.T. appeals, arguing that there was insufficient evidence

that he is an "incapacitated person" for the purposes of G. L.

c. 190B, § 5-101 (9). W.T. further argues that the evidence was

insufficient to establish that he was not competent to make an

informed treatment decision or that, if W.T. were incapacitated,

his substituted judgment would be to consent to the

administration of Haldol decanoate. Finally, W.T. argues that,

to the extent that the judge's order authorized the

administration of alternative medications, it was premature.

Assuming, without deciding, that the evidence was sufficient to

find that W.T. was an incapacitated person, the guardianship was

not appropriately limited in scope, as the judge did not make

the necessary subsidiary findings that would establish a nexus

between W.T.'s underlying condition and the scope of the

guardianship. Accordingly, we vacate the decree and order and

remand the matter for further proceedings.

Background. On June 17, 2019, the Department of Mental

Health (department) petitioned the Probate and Family Court,

seeking to appoint Shelly Oakes as a permanent guardian of W.T.

and to authorize treatment of W.T. with antipsychotic medication

in accordance with a treatment plan. On September 25, 2019, by

agreement of the parties, a judge appointed Oakes as a temporary

guardian.

Based on the evidence at trial, the judge found as follows.

W.T. was involuntarily committed to the Dr. Solomon Carter

Fuller Mental Health Center (SCF) in 2011 under G. L. c. 123,

§§ 7, 8; eight years later, W.T.'s application to the department

to be admitted to SCF on a "conditional voluntary basis" was

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approved and he resided there at the time of trial. See G. L.

c. 123, §§ 10, 11.

W.T. was sixty-seven years old and had a diagnosis of

schizoaffective disorder, bipolar type. W.T. testified that he

understood he has been diagnosed with a mental illness, "but

that doesn't mean [he has] to agree with it." W.T. takes

antipsychotic medications to treat his condition. Dr. Marco

Caicedo, W.T.'s treating psychiatrist for the prior three years,

testified that in 2018, W.T. complained of side effects from the

antipsychotic medication Trilafon. Dr. Caicedo changed W.T.'s

antipsychotic medication to Haldol, initially in oral tablets

and liquid (Haldol P.O.). After several months, Dr. Caicedo

started administering Haldol decanoate, which, as we have noted,

was administered in long-acting injections. W.T. has requested

that the medication be switched back to Haldol P.O. due to

soreness in his muscles where the shot was administered, but Dr.

Caicedo declined the request. 1 The judge credited Dr. Caicedo's

testimony that as of the time of trial, W.T. was accepting his

antipsychotic medications and was compliant with taking them and

that his behavior had been in control.

1 Dr. Caicedo testified that Haldol decanoate is the best way to

deliver the medication but the transcript of his explanation for

that conclusion is unclear, apparently due to "distortion" in

the hearing recording. No party sought to reconstruct the

record either pursuant to Mass. R. A. P. 8 (c), as appearing in

481 Mass. 1611 (2019), or any other procedural rule.

3

Since 2018, W.T. has had increased privileges at SCF. He

has been permitted to visit other areas of the hospital outside

of his locked ward, and he can go off-site for walks and

shopping if he is supervised. In addition, W.T. handles his own

financial matters, including doing his own banking off-site.

W.T. experienced significant weight loss over the several

months and years prior to trial. 2 He suffered diarrhea for three

months. Magnetic resonance imaging revealed a lesion of unknown

cause on his left lung. W.T. refused further testing, such as a

biopsy or other scans, to diagnose the cause of the lesion. 3

2 W.T. testified that when he entered SCF, he weighed 210 pounds,

that his weight dropped to between 150 to 160 pounds, and that

over a two month period of time it dropped quickly to "113, 118

pounds" due to diarrhea before rebounding to 126 pounds at the

time of trial.

3 W.T. argues that the judge's finding that W.T. refused "X-Rays,

CAT scan or biopsy" was unsupported by the record and should be

stricken. This finding was consistent with W.T.'s own proposed

findings of fact and rulings of law, which also interpreted Dr.

Caicedo's testimony to mean that "Respondent has refused to

undergo further x-rays[,] a CAT scan[,] or biopsy to investigate

his condition." Indeed, Dr. Caicedo testified that W.T. refused

a "complete scanning of the body," and when he was asked if W.T.

would agree to a biopsy, Dr. Caicedo testified that W.T. was

refusing "any other kind of interventions." W.T. also contends

that the judge improperly used the term "mass" instead of

"lesion" in her decision and the word should be stricken. The

judge used the term "lesion" through the decision, and any lack

of precision in one reference to "a mass" did not affect the

outcome of the decision. Similarly, W.T. argues that the

judge's finding that he had "chest pain" was unsupported by the

record and should be stricken. Yet, there was record evidence

that he took prescription drugs that are used to treat chest

pain, and in his proposed findings of fact, W.T. acknowledged

that "[h]e also has a prescription for nitroglycerin for chest

pain." W.T. testified that his primary care physician informed

4

Dr. Caicedo did testify, however, that W.T. was compliant with

medication for several other health conditions, including

diabetes, coronary artery disease, gout, high cholesterol, acid

reflux, and chest pain, and that W.T. understood the risks and

benefits of refusing or accepting them.

The judge also found that W.T. has been classified as a

level three sex offender by the Sex Offender Registration Board

(SORB). The classification requires that W.T. register with

SORB upon discharge from SCF to a community residence. See

G. L. c. 6, § 178K (2) (c). While W.T. has expressed a desire

to leave SCF, he believes the classification was an error and he

has informed Dr. Caicedo that he will never willingly register

if discharged; instead, he blamed the department for his

inability to live outside the facility. 4

Crediting Dr. Caicedo's testimony, the judge found that

W.T. "has poor insight into the risks and benefits of medical

intervention." The judge determined that W.T.'s "clinically

him he did not need a biopsy. The judge did not find this

testimony credible.

4 W.T. argues that the finding that he "believes that he would

become . . . [a] suspect for . . . unsolved sexual crimes . . .

and harassment and retaliation . . . [as] a Registered . . . sex

offender" was clearly erroneous. While that finding appears

unsupported by the record before us, the error "did not

materially contribute to the judge's ultimate conclusions that

[the department] had met its burden." Guardianship of C.A., 102

Mass. App. Ct. 392, 398 (2023).

5

diagnosed condition" results in "an inability to receive and

evaluate information or make or communicate decisions to such an

extent that [he] lacks the ability to meet essential

requirements for physical health, safety, or self-care, even

with appropriate technological assistance," thus rendering him

an "incapacitated person" under G. L. c. 190B, § 5-101 (9).

Despite having found that W.T. had accepted his prescribed

medications of Haldol P.O. and Haldol decanoate -- and had been

in behavioral control since he started taking them -- the judge

concluded that W.T. lacked "the present capacity to make

informed decisions regarding . . . psychiatric treatment,

including, but not limited to treatment with antipsychotic

medication," and authorized Oakes to "monitor the administration

of [W.T.'s] antipsychotic medications." Under the decree and

order, W.T. retained the right to "make and communicate routine

health care decisions" and to manage the intake of non-

antipsychotic medications. W.T. retained other rights as well,

such as to self-care, choosing his leisure activities,

determining his friendships and visitations, and "seek[ing]

legal assistance in proceedings before the SORB and/or

appropriate courts to determine his obligation to register with

the SORB."

The judge appointed Oakes as W.T.'s limited guardian. The

judge found that "the substituted judgment of [W.T.], if not

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incapacitated[,] would be to consent to the proposed treatment"

plan already described. The judge ordered that the proposed

plan be implemented, monitored by Oakes, and then reviewed by

the court in twelve months. The judge also ordered that "Dr.

Caicedo shall consider whether it is possible for [W.T.] to

resume taking oral Haldol to avoid muscle pain from injections,

if possible" but that it was "in Dr. Caicedo's sole discretion

to determine whether a transition to oral Haldol is possible."

W.T. filed a timely notice of appeal.

Discussion. To meet the standard for appointment of a

guardian and issuance of a substituted judgment treatment order,

the department was required to prove by a preponderance of the

evidence that W.T. was an incapacitated person within the

meaning of G. L. c. 190B, § 5-101 (9), and that, if he were not

incapacitated, W.T. would choose to be treated by Haldol

decanoate. See Guardianship of A.R., 99 Mass. App. Ct. 349,

353, 358 (2021); G. L. c. 190B, § 5-306A. We review the judge's

ruling for abuse of discretion or other error of law. See

Guardianship of Linda, 401 Mass. 783, 786-787 (1988). "[A]

judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge made a clear error of

judgment in weighing the factors relevant to the decision, such

that the decision falls outside the range of reasonable

7

alternatives" (quotation and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

1. Sufficiency of the evidence. W.T. argues that the

evidence was insufficient to support the judge's finding that he

was an incapacitated person. Specifically, W.T. contends that

by using the term "incompetence," the judge applied the wrong

legal standard by conflating the statutory definition of an

incapacitated person with the common-law test for competency to

give informed consent and that the decision was based on clearly

erroneous findings.

a. Definition of incapacitated person. As defined in

G. L. c. 190B, § 5-101 (9), an "incapacitated person" is:

"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."

In concluding that W.T. was an incapacitated person, the judge

cited to that statute and closely paraphrased that definition.

The fact that the judge sometimes used the words "incompetence"

and "incompetent," the terminology used in cases that predate

the adoption of § 5-101 (9), see St. 2008, c. 521, § 9, does not

mean that the judge applied the incorrect definition of an

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incapacitated person. See Guardianship of C.A., 102 Mass. App.

Ct. 392, 396 (2023). 5

b. Scope of guardianship. W.T. concedes that he has a

clinically diagnosed condition: schizoaffective disorder,

bipolar type. 6 We assume for the sake of argument that this

condition "result[ed] in an inability to receive and evaluate

information or make or communicate decisions to such an extent

that he lacked the ability to meet the essential requirements

for physical health, safety, or self-care, with appropriate

technological assistance." 7 G. L. c. 190B, § 5-101 (9).

Nonetheless, the appointment of a limited guardian would need to

be appropriately limited in scope. See Guardianship of D.C.,

479 Mass. 516, 523-524 (2018); Guardianship of C.A., 102 Mass.

App. Ct. at 397.

5 When ruling on the petition, the judge did not have the benefit

of Guardianship of C.A., which issued while this appeal was

pending.

6 According to Dr. Caicedo, when that disorder is left untreated,

W.T. is "acutely psychotic" and "delusional."

7 W.T. argues that the judge's finding that he does not have the

present capacity to make informed decisions regarding his

personal affairs, general medical affairs, and psychiatric

treatment was clearly erroneous as Dr. Caicedo testified that he

discussed routine medical care with W.T. and that W.T. "seems to

understand the risks and benefits of refusing or accepting . . .

medications" for diabetes, hyperlipidemia, gout, acid reflux,

and for chest pain. However, simply because W.T. could

understand the risks of some conditions does not preclude the

judge from finding that he was incapacitated from making other

decisions. See Guardianship of C.A., 102 Mass. App. Ct. at 397-

398.

9

"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')." Guardianship of D.C., 479 Mass. at 523. A person

may have the capacity to make some decisions but may be an

"incapacitated person" within the meaning of § 5-101 (9) for

others. See Guardianship of Bassett, 7 Mass. App. Ct. 56, 64

n.9 (1979). When filing a petition for a limited guardianship,

the petitioner must "define the scope of the guardianship."

Guardianship of D.C., supra. "Consistent with the purpose

underlying the Legislature's 2008 adoption of the guardianship

provisions of the Uniform Probate Code, see St. 2008, c. 521,

the ability to create a limited guardianship is intended to

maximize the liberty and autonomy of a person subject to

guardianship." 8 Guardianship of B.V.G., 474 Mass. 315, 323

8 "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

10

(2016). "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)."

Guardianship of D.C., supra at 523-524.

The statutory purpose is further explained in the comment

accompanying the Uniform Probate Code:

"The purpose of subsections (a) and (c) is to remind an

appointing court that a guardianship under this legislation

should not confer more authority over the person of the

[incapacitated person] than appears necessary to alleviate

the problems caused by the [person's] incapacity. This is

a statement of the general principle underlying a 'limited

guardianship' concept."

Guardianship of B.V.G., 474 Mass. at 322, quoting Uniform

Probate Code prior § 5-306 comment, 8 U.L.A. (Part III) 186

(Master ed. 2013).

The judge found that W.T. was an incapacitated person based

in part on his clinical diagnosis, his weight loss, diarrhea,

the untreated lesion on his left lung, and his refusal to

register as a level three sex offender. However, as to the

Haldol, she found that W.T. "has accepted the Haldol medication

Disability and Their Property, Prefatory Note, in The New MUPC

Is Here . . . and Now at 227 (Mass. Cont. Legal Educ. 2012)."

Guardianship of D.C., 479 Mass. at 523 n.3.

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through the present time," and that "since his acceptance for

care and treatment on a conditional voluntary basis, [W.T.] has

accepted his prescribed anti-psychotic medications of Haldol and

Haldol decanoate." The judge did not make a finding that W.T.

had stopped taking either form of the Haldol, nor did she find

that there was a therapeutic difference between the Haldol

decanoate and the Haldol P.O. 9

We conclude that the guardianship was not properly limited

to achieve the purposes of G. L. c. 190B, § 5-306. The comment

accompanying the statute makes clear that there must be a nexus

between the reason for the guardianship and the scope of the

guardianship. Here, the guardianship conferred "more authority

over the person of the incapacitated person than appears

necessary to alleviate the problems caused by the person's

incapacity." G. L. c. 190B, § 5-306 comment. The example in

the comment is illustrative, as it explains that "if 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

9 While Dr. Caicedo testified that W.T. stopped taking the Haldol

P.O., the judge did not make a finding that W.T. did, nor did

the judge state whether she credited Dr. Caicedo's testimony on

this point.

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advisability and form of treatment and to authorize actions

necessary to carry out the decision." Id.

Here, while there was testimony that W.T. did not

comprehend the risks of his weight loss and lung lesion, the

guardianship did not relate to those concerns. Instead, the

guardianship permits W.T. to make all routine health care

decisions and to manage all of his non-antipsychotic

medications, while appointing a guardian to make decisions based

on his antipsychotic medications, which is at the heart of the

issue in determining W.T. to be an incapacitated person. Where

the judge found that W.T. has accepted his antipsychotic

medications and did not make a finding either that W.T. did not

appreciate the need to control his mental illness with

antipsychotic medications or that one form of Haldol was

superior to the other at reducing his symptoms and assisting him

with the activities with which he struggled, there is no nexus

between the scope of the guardianship and W.T.'s underlying

condition. We therefore conclude that the judge abused her

discretion in appointing a limited guardianship to manage W.T.'s

antipsychotic medications.

Conclusion. The decree and order is vacated, and the case

13

is remanded for further proceedings consistent with this

memorandum and order. 10

So ordered.

By the Court (Rubin, Henry &

Hand, JJ. 11),

Clerk

Entered: September 13, 2023.

10 Because we conclude that the guardianship was not properly

limited, we need not address the remaining issues in W.T.'s

brief as they relate to the substituted judgment determination

and the alternative medications under the treatment plan.

However, we note that "in Massachusetts there is 'a general

right in all persons to refuse medical treatment in appropriate

circumstances,' and that right extends to 'an incompetent, as

well as a competent, patient.'" Zaleskas v. Brigham & Women's

Hosp., 97 Mass. App. Ct. 55, 62 (2020), quoting Superintendent

of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 745-746

(1977). In addition, we note that Dr. Caicedo was offered as an

expert in psychiatry, but not as to the other health related

issues W.T. faced, and upon which the judge ultimately relied

when appointing the guardian.

11 The panelists are listed in order of seniority.

14