The rights of third parties to intervene in guardianship proceedings - A practical application of the holding In re Guardianship of B.V.G

Issue January/February 2017 January 2017 By Virginia W. Connelly

Chapter 190B of Massachusetts General Laws (the "MUPC") shifted the balance between the societal need to protect incapacitated persons and the rights of those persons to maintain as much autonomy as possible. For example, the expanded medical certificate provides much more detail about the individual's ability or inability to perform various functions. The court will limit the guardian's authority to oversight of those functions that the individual cannot do independently.

The MUPC also expanded the rights of third parties to intervene in guardianship proceedings to further the interests of the incapacitated persons. The Supreme Judicial Court interpreted and applied this new law in the matter Guardianship of B.V. G.1

Background Facts and Procedural History

BVG was diagnosed with intellectual disabilities, Tourette Syndrome and emotional difficulties. When her parents divorced, the father was granted custody and the mother had supervised visits. Upon B.V. G.'s 18th birthday, the father filed a petition for guardianship. The mother filed an appearance, seeking to expand her parenting time. The court appointed counsel for B.V.G. The father was appointed temporary guardian, and the parties agreed that efforts would be made to strengthen mother's relationship with B.V.G. Also, B.V.G.'s maternal grandfather could exchange one email per day with her. The grandfather believed that the father was interfering with the emails, and filed a motion to intervene in the guardianship proceeding under Mass. R. Civ. P. 24, claiming he had standing as an "interested person." The court denied the motion, finding that he had no standing under c 190B, §5-306(c), because the grandfather had no financial, fiduciary or custodial relationship with B.V.G. On appeal, the Appeals Court found that the grandfather had standing, but upheld the denial of his motion, concluding that court-appointed counsel for B.V.G. provided adequate protection of B.V.G's interests.2 The grandfather was granted further appellate review by the Supreme Judicial Court.

Court's Analysis of Meaning of "Interested Parties"

The SJC took a second look at the meaning of "interested person" in the context of intervention in a guardianship proceeding. Chapter 190B, §1-201(24) defines an interested person as:

heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claims against a trust estate or the estate of a decedent, ward, or protected person. It also includes persons having priority for appointment as personal representative, and other fiduciaries represented interested persons. The meaning as it relates to particular person may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.

The SJC noted that c 190B, §5-306(c) provides that the court, "on its own motion or on appropriate petition or motion of the incapacitated person or other interested person…may limit the powers of a guardian … and thereby create a limited guardianship." The purpose of that provision is set forth in Section §5-306(a):

The court shall exercise the authority conferred in [G.L. c. 190B, §§5-301 et seq.,] so as 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.

The MUPC comment on the preference for limited guardianships indicates:

[T]he 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] that appears necessary to alleviate the problems caused by the [person's] incapacity.3

The SJC concluded that the Legislature intended Section 5-306(c) to "provide a means by which an individual interested in the welfare of an incapacitated person could advocate on behalf of that person's interests in obtaining such a limited guardianship."4 Unlike intervention under Mass R. Civ P., Rule 24, which requires that the proposed intervenor have a pecuniary or other personal right or interest in the matter, intervention by a third party in a guardianship proceeding can be based on the third party's interest in the welfare of the incapacitated person.

The SJC stated that "the grandfather has demonstrated an interest in B.V.G.'s welfare sufficient to establish that he is an 'interested person.'"5 The grandfather had specifically asserted that B.V.G. wanted to have a relationship with him and vice versa. There was no evidence in the record to suggest that increased contact between the grandfather and respondent would be harmful. The SJC rejected father's argument that intervention was not warranted because B.V.G. was already adequately represented by counsel. The MUPC encourages a broad right of advocacy in favor of an incapacitated person's protected interest in a limited guardianship. Once a judge has determined that a proposed intervenor is an "interested person," nothing more is required to establish that person's right to intervene.6

Looking Forward: The Practical Application of the B.V. G. Holding

Under prior law, an unrelated third party could file a petition for appointment of a guardian based on a "humanitarian interest" in an individual's welfare.7 The practical application of the B.V.G. holding is yet to be fully understood. Interested persons can not only petition for appointment of a guardian, but seek to intervene in a pending guardianship proceeding filed by another person.

Filing for guardianship can put a heavy financial and personal burden on the petitioner, as well as on the incapacitated person's health care and personal providers. The sheer volume of guardianship proceedings does not allow for routine intervention as a matter of course. The Probate and Family courts will need to be scrupulous in determining those cases in which intervention is proper and in the best interests of the incapacitated person. The realm of possible intervenors includes not only blood relatives or relatives by marriage, but also caretakers, friends, neighbors or others who have interacted with the incapacitated person. An analysis of a motion to intervene will turn on the nature and extent of the relationship between the intervenor and the incapacitated person, the interest that is being asserted, and whether invention is likely to advance the incapacitated person's interests.

A motion to intervene should be accompanied by a detailed affidavit, setting forth specific facts detailing the intervenor's relationship with the incapacitated person, the rationale for intervention, and the purpose or interest that the intervenor seeks to advance. When possible the intervenor should include photos, correspondence or other materials that provide a graphic depiction of the history and relationship between the intervenor and incapacitated person. It is likely in many cases the motive of the intervenor will be contested.