The Massachusetts Appeals Court recently ruled that a woman placed under guardianship for mental illness should be afforded an opportunity to demonstrate that she is competent to retain an attorney of her choosing in order to challenge the guardianship. The case (Guardianship of Zaltman 05-P-1611 Appeals Court), which was decided on March 6, 2006, clarifies the law in Massachusetts regarding a ward's capacity to challenge guardianship, and highlights the role of an attorney in this often confusing process.
In the fall of 2004 the Suffolk County Probate Court found Marsha Zaltman incapable of taking care of herself due to mental illness and appointed a temporary guardian. In February 2005 the same court approved a permanent guardianship along with a treatment plan which allowed the guardian to treat Ms. Zaltman with anti-psychotic drugs until May. Throughout the guardianship Ms. Zaltman disagreed with the decisions of her guardian and her original court appointed attorney. At one point, against Ms. Zaltman's wishes, hers guardian terminated the home care Ms. Zaltman was receiving because of unsubstantiated allegations of fraud. Likewise, Ms. Zaltman felt that her court appointed attorney did not do enough preparation for her guardianship hearing. By June of 2005, after months of progress, Ms. Zaltman's treating physicians told her that she no longer needed a guardian, and Ms. Zaltman hired an attorney to petition for removal of the guardianship.
At the emergency hearing convened to address Ms. Zaltman's petition for removal of guardianship, the probate judge allowed a motion to strike the attorney Ms. Zaltman retained to help her with the petition. The judge reasoned that since Ms. Zaltman was under guardianship, she was clearly not competent to retain her own counsel. The judge did not provide Ms. Zaltman an opportunity to rebut this reasoning and continued the guardianship.
The Appeals Court disagrees with the probate court's judgment, saying that "the underlying problem is reflected in the judge's pronouncement that 'the 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." The Appeals Court holds that when the interests of the ward and the guardian were adverse, as they clearly were in this case, and where the ward may have recovered competency, the ward had the right to prove her competence to select her own attorney and challenge the guardianship.
This case points out the fluid nature of guardianship. As the Appeals Court points out, guardianship does not exist in perpetuity. If a ward recovers (often the case given the advances of modern medicine) she has a right to remove the guardianship. The selection of an attorney the ward feels comfortable with is central to this process. Enlisting the services of a good elder law attorney can make the removal of guardianship a smoother process and help to insure that a ward's best interests and expectations are met during what tends to be a difficult and stressful time.
Subscribe to the Knowledge Bank.
