The maternal grandfather of B.V.G., a young woman with intellectual disabilities, sought to intervene in permanent guardianship proceedings pending in the Probate and Family Court on the petition of B.V.G.'s father, who had been appointed B.V.G.'s temporary guardian when she was eighteen years old.
Concluding that the grandfather lacked standing to intervene because he was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c), a Probate and Family Court judge denied the motion. The grandfather appealed, and the Appeals Court affirmed the denial, on grounds other than those relied upon by the motion judge. See Guardianship of B.V.G., 87 Mass.App.Ct. 250 (2015). We allowed the grandfather's petition for further appellate review.
General Laws c. 190B, § 5-306 (c), provides that the Probate and Family Court may, "on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, ... limit the powers of a guardian ... and thereby create a limited guardianship." Based on our review of the record and the judge's findings, we conclude that the facts relevant to the grandfather's standing to bring the petition are not disputed, and that those facts support the conclusion that the grandfather is an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c). As such, the grandfather is entitled to intervene as of right in the pending proceeding for permanent guardianship.
In that proceeding, the grandfather may pursue his claim that
1. Background and prior proceedings. In considering the grandfather's standing to intervene,
B.V.G. was born in February, 1993. She has an intellectual disability as well as attention deficit hyperactivity disorder and Tourette's syndrome. B.V.G.'s parents, who separated when she was quite young, were divorced following a lengthy and acrimonious custody dispute over B.V.G. The father was awarded sole
In February, 2011, when B.V.G. reached the age of eighteen, the father filed a petition in the Probate and Family Court seeking to be appointed her legal guardian on the basis of her intellectual disability. The father was appointed B.V.G.'s temporary legal guardian in December, 2011.
In January, 2013, the father filed a petition seeking permanent guardianship. At that time, the father's temporary guardianship was extended through April, 2013, pending a hearing on his petition for permanent guardianship. A stipulation by the father, the mother, and an attorney appointed to represent B.V.G. was incorporated in the extended guardianship, authorizing slightly increased visitation between B.V.G. and her mother.
Arguing that the father was not furthering B.V.G.'s best interests by restricting her relationship with him, the grandfather filed a motion to intervene, seeking to limit the pending permanent guardianship pursuant to G. L. c. 190B, § 5-306 (c). In support of his motion that he was an "interested person," the grandfather submitted printouts of his electronic communications with B.V.G. through a social media Web site as evidence of his caring for B.V.G., and of her wish to have contact with him. The grandfather's assertion that it was B.V.G. who initiated the electronic contact is supported by these documents.
The father does not suggest that there is any reason that B.V.G. should not be allowed to maintain a relationship with her grandfather, and no longer contests that the grandfather has an interest in B.V.G.'s welfare. The father also does not dispute that he has restricted B.V.G.'s relationship with the grandfather. Rather, in response to the grandfather's contention that such a relationship is in B.V.G.'s best interests, the father maintains that, as B.V.G.'s legal guardian, he has the right to determine those with whom she associates.
Concluding that the grandfather was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c), the judge denied the grandfather's motion to intervene as of right.
2. Discussion. Review of a question of statutory interpretation is de novo. Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010). In reviewing a motion to intervene, which involves questions of fact and of law, "[a] judge has discretion in determining whether an intervening party has demonstrated facts that entitle him or her to intervention as of right, and we accordingly review the judge's factual findings for clear error." Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). Apart from the discretion to find facts, however, a judge's ruling on a motion to intervene as of right is a ruling of law, not a discretionary matter. See id. ("Whether those facts are sufficient to meet the requirements for intervention is a question of law, ... and is reviewed as such").
Here, the motion judge properly concluded that G. L. c. 190B, § 5-306 (c), creates a cognizable interest that may provide the basis upon which to intervene in a pending matter in a motion filed pursuant to Mass. R. Civ. P. 24 (a). As stated, the judge then determined that the grandfather was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c). We turn first to the judge's determination that the grandfather is not an "interested person."
a. Meaning of "interested person." General Laws c. 190B, § 5-306 (c), provides that the Probate and Family Court may, "on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, ... limit the powers of a guardian ... and thereby create a limited guardianship." An "interested person," as defined by G. L. c. 190B, § 1-201 (24),
This definition is applicable, inter alia, to all types of guardianships and conservatorships under G. L. c. 190B, including those over minors and incapacitated adults.
In reaching his conclusion that the grandfather is not an "interested person," the motion judge commented that the enumerated definitions of "interested person" in G. L. c. 190B, § 1-201 (24), applicable to all guardianships and conservatorships, "hint of a financial, but not visceral, stake in the underlying proceedings," and that an individual who is "interested in the welfare" of an incapacitated person "may not be sufficient."
To determine the meaning of "interested person" under G. L. c. 190B, § 5-306 (c), we apply fundamental principles of statutory construction. "[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished" (citation omitted). Massachusetts Insurers Insolvency Fund v. Smith, 458 Mass. 561, 565 (2010).
Considering the plain language of the limited guardianship provision outside its statutory context, the "interest" required to qualify as an "interested person" might be viewed both as a potential intervener's own interests in protecting the incapacitated person's estate and as an interest in the well-being of the incapacitated person. "Statutes are to be interpreted, [however,] not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, [and] prior legislation.... General expressions may be restrained by relevant circumstances showing a legislative intent that they be narrowed and used in a particular sense" (citation omitted). Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006).
A guardianship proceeding is designed to effectuate the best interests of the incapacitated person. See Matter of McKnight, 406 Mass. 787, 791 (1990); Guardianship of Anthony, 402 Mass. 723, 726 (1988); King v. Dolan, 255 Mass. 236, 237 (1926). A focus solely on the interests of the potential intervener in the
That purpose is set forth explicitly in G. L. c. 190B, § 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 statutory purpose is further explained in the comment accompanying this language in the Uniform Probate Code:
Given this, reading "interested person" within the meaning of G. L. c. 190B, § 5-306 (c), as providing a means by which to protect the intervener's own interests, as distinct from the intervener's interest in advancing those of the incapacitated person, is inconsistent with the express purpose of the statutory provision. See Globe Newspaper Co., petitioner, 461 Mass. 113, 117 (2011) (Legislature presumably is aware of statutory and common law that governs matter which it is enacting). See also Matter of McKnight, supra at 791; Guardianship of Anthony, supra at 726. 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.
From this statutory context, it is clear that the Legislature intended G. L. c. 190B, § 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. We therefore conclude that an "interested person" as defined by G. L. c. 190B, § 1-201, within the meaning of G. L. c. 190B, § 5-306 (c), is a "person interested in the welfare of the incapacitated person." See, e.g., G. L. c. 190B, § 5-306.
Other provisions in G. L. c. 190B further demonstrate that the phrase "interested person" in G. L. c. 190B, § 5-306 (c), is intended to refer to a "person interested in the incapacitated
b. Whether the grandfather is an "interested person." Because the motion judge determined that the grandfather was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c), he did not reach any determination on the question of the grandfather's and B.V.G.'s interests. We conclude that, based on undisputed facts in the record, the grandfather has demonstrated an interest in B.V.G.'s welfare sufficient to establish that he is an
The grandfather specifically asserted in his motion to intervene that B.V.G. has expressed her interest in having a relationship with him, an interest he reciprocates. Indeed, both B.V.G.'s expressed interest in maintaining a relationship with her grandfather, and the grandfather's ongoing interest in her welfare, are at this point undisputed. Although the father questioned in his brief whether B.V.G. had expressed an interest in a relationship with the grandfather, at oral argument he conceded that she had. Nothing in the record before us indicates that increased contact between B.V.G. and her grandfather would be harmful, and the record reflects that the grandfather has an interest in advocating on B.V.G.'s behalf to limit the guardianship.
The judge noted that the father, as temporary guardian, disagreed with the idea of B.V.G. having any relationship with the grandfather, and the father concedes that he has restricted that relationship. Although G. L. c. 190B, § 5-309 (a), requires a guardian to "consider the expressed desires and personal values of the incapacitated person when making decisions," the father has maintained consistently that, as guardian, absent an express limitation on his authority, he may restrict B.V.G.'s relationship with her grandfather, because he has the authority to do so.
The father argues that intervention in the guardianship proceeding is not appropriate because the grandfather has no right to intervene under Mass. R. Civ. P. 24 (a), which generally focuses on the intervener's interests, while a guardianship proceeding focuses on the interests of the incapacitated person. He argues also that the grandfather has no due process right to intervention, and that the judge did not err in denying permissive intervention.
The father's argument that the grandfather is not entitled to intervene misconstrues the meaning of G. L. c. 190B, § 5-306 (c).
c. Adequacy of representation. After concluding that the grandfather was an "interested person," the Appeals Court affirmed the denial of the grandfather's motion on the ground that B.V.G.'s interests were adequately represented by her counsel and the newly appointed guardian ad litem. See Guardianship of B.V.G., 87 Mass.App.Ct. 250, 258-259 (2015). General Laws c. 190B, § 5-306, however, protects an interested person's interest in advocating on behalf of an incapacitated person's right to the most appropriately limited guardianship, regardless of whether the incapacitated person is already represented. The provision authorizes a court to limit a guardianship "on its own motion or on appropriate petition or motion of the incapacitated person or other interested person." This language unambiguously grants an "interested person" an equal and unconditional right to petition to limit the guardianship, along with that of the incapacitated person.
Nothing in the statutory language, or in its legislative history, suggests that an interested person must establish that an incapacitated person is not already adequately represented before being permitted to intervene to limit a guardianship. In adopting the Uniform Probate Code in 2008, and G. L. c. 190B, § 5-306, in particular, the Legislature was aware that a court may appoint
Moreover, the language of G. L. c. 190B, § 5-311 (b), relating to the removal or resignation of a guardian and termination of incapacity, and the comments accompanying that language in the Uniform Probate Code, see Uniform Probate Code art. V prefatory note, 8 U.L.A. (Part III) 19 (Master ed. 2013), further indicate a legislative preference for encouraging an incapacitated person and other "interested person[s]" to advocate to the court to safeguard the liberty interests of the incapacitated person. General Laws c. 190B, § 5-311 (b), provides:
The comment accompanying this language in the Uniform Probate Code states:
Uniform Probate Code prior § 5-311 comment, 8 U.L.A. (Part III) 198 (Master ed. 2013).
Thus, the Massachusetts implementation of the Uniform Probate Code encourages a broad right of advocacy in favor of an incapacitated person's protected interest in a limited guardianship. Once a judge has concluded that a proposed intervener is an "interested person," therefore, nothing more is required to establish that person's entitlement to intervene as of right.
B.V.G.'s attorney had conducted negotiations, on B.V.G.'s request, to improve her relationship with her mother, which resulted in the father's and mother's stipulation concerning B.V.G.'s having increased contact with her mother, and a stipulation added to the temporary guardianship order that the father was not to interfere; the attorney stated that he preferred to take this route with the grandfather, and that negotiations were ongoing.