(Cross-posted from The COFAR Blogsite)
UPDATE: A new attorney for Andy McDonald will be appointed this week (the week of September 5) to represent him in his guardianship case, according to Mark Larsen, the director of the Mental Health Litigation Division of the Committee for Public Counsel Services (CPCS), the state’s public defender agency.
After letting us know on Friday that his agency would “look into” why the Middlesex County Probate Court has failed since last March to appoint an attorney to represent Andy McDonald, Larsen emailed me on Sunday (Sept. 4) with news of the imminent appointment.
The failure of the probate court to appoint attorneys to represent developmentally disabled or otherwise incapacitated persons is apparently a persistent problem in Massachusetts.
In his message on Friday, Larsen stated that appointments of attorneys in guardianships are “made as needed” and requested from lists that the CPCS provides to the probate court. I asked Larsen via email how these lists are compiled and whether the attorneys are recommended by the Department of Developmental Services. Larsen said he will be out of the office until September 19 and will respond to my question at that time.
It has been more than six months since Andy McDonald’s attorney in his guardianship case resigned, and no one has yet been appointed to replace that previous attorney, according to Andy’s parents.
In addition, no up-to-date, independent clinical evaluation of Andy, who is intellectually disabled, appears to have yet been done. Such an evaluation has long been advocated by Andy’s parents, Stan and Ellen McDonald, and by the McDonalds’ local legislators and COFAR.
We’ve written about the McDonald case many times already, but it seems that every time we check in on the case, there has been some new development that works to the disadvantage of Andy and his family.
As we’ve previously noted, Andy’s parents, Stan and Ellen McDonald have been trying to overcome a devastating and factually inaccurate probate court ruling from a decade ago in which a judge concluded that Andy is so dangerous that he must be banned for life from ever returning to his hometown of Sherborn, where Stan and Ellen still live.
Stan is now 81 and Andy is 49, and Stan is not sure how much longer he will be able to visit Andy in his group home in Northborough. Stan and Ellen maintain that Andy is not dangerous and should be allowed supervised visits home. They note that even John Hinkley, who shot President Ronald Reagan in 1981, was permitted to leave institutional care last month and go back home to live with his mother, based on updated clinical evaluations.
Yet, none of those factors appears to have had any effect on the way the probate court system and the Department of Developmental Services continue to treat Andy and his family. Andy continues to be denied visits home; Stan and Ellen are rarely even informed about major events or issues regarding Andy’s guardianship; and as I noted, the Middlesex County Probate Court has failed even to appoint an attorney to represent Andy, as required by law.
The state’s Uniform Probate Code (M.G.L. c. 190B, s. 5-106) states that the probate court must appoint an attorney for a developmentally disabled or otherwise incapacitated person in a guardianship case if such an appointment is requested.
Last March, when Stan and Ellen arrived at the Middlesex Probate Court to attend a hearing held to appoint yet another third-party guardian for Andy, they were told that Andy’s court-appointed attorney in the case had resigned as of that day. While that DDS-recommended attorney had also not advocated for home visits, at least Andy was technically represented legally in the case.
During a break in that March 17 hearing, the then attorney told Stan that she would work with Andy’s new guardian to ensure that a new, “experienced” attorney was appointed as soon as possible to replace her. Stan said this week that as far as he knows, that hasn’t happened.
On August 1, Stan contacted the Committee for Public Counsel Services (CPCS), the state’s public defender agency, for help in getting an attorney appointed for Andy, and was told that same day by an administrator there that the organization would inquire about “getting a successor counsel appointed.” He said he has not heard anything further about the matter.
Since Stan and his former wife voluntarily relinquished their guardianship of Andy in 1986 as part of a custody battle, Andy has lived under a series of court-appointed guardians. Like many people who lose or fail early on to secure guardianship of developmentally disabled members of their families, Stan and his current wife, Ellen, have been repeatedly stymied in their efforts to obtain that guardianship.
As a result, the courts and DDS view Stan and Ellen as having no no legal standing to request a clinical evaluation of Andy or anything else relating to the case. For years, they have had to watch helplessly as court-appointed guardians, who have hardly known Andy and rarely visited him, have made major decisions about his care.
The need for an up-to-date, independent, clinical evaluation
In light of the 2006 probate court decision that concluded that Andy was dangerous, Stan and Ellen believe an independent clinical evaluation is the only way to bring about the approval of home visits for Andy. In fact, it’s not clear that any clinical evaluation was done by DDS when Andy’s latest guardian was formally appointed earlier this year.
The Uniform Probate Code requires that a petition filed for a new guardianship of a developmentally disabled individual include a “clinical team report” done within the previous 180 days. Stan said he asked for a copy of that clinical team report and was told by Andy’s DDS service coordinator that it was confidential and that he would not be allowed to see it.
Stan added that if a clinical team did in fact evaluate Andy within the past year, such a team never sought either his or Ellen’s input in that evaluation. Yet, as Andy’s parents, Stan and Ellen do appear to have at least some legal standing in Andy’s guardianship case, even if they aren’t his legal guardians.
In a recent Supreme Judicial Court case (Guardianship of B.V.G.), the high court ruled that anyone interested in the well-being of an incapacitated individual in a guardianship case is considered under the Uniform Probate Court to be an “interested person” in those proceedings. As such, they should be afforded certain rights, such as visitation rights.
Moreover, the court in the B.V.G. case specifically noted that the probate code requires that an incapacitated individual’s changed behavior and “expressed desires” be considered in decisions made by their guardians. Not only should a guardian consider the incapacitated person’s expressed desires, but the guardian has a duty to immediately notify the court if the person’s “condition has changed so that he or she is capable of exercising rights previously limited.”
Andy has expressly stated to his family and in open court his desire for home visits; and his behavior has reportedly been exemplary for more than a decade.
This leaves us with a number of questions. Has Andy’s new DDS-appointed guardian been working to keep the court informed about Andy’s current behavior and expressed desires, and has she pushed for an independent clinical evaluation of Andy? Most immediately, why hasn’t a new attorney been appointed to represent Andy?
The lack of legal representation and an independent clinical evaluation are just two of the many ways in which the system appears to have continued to fail Andy and his family just as it continues to fail countless other individuals with developmental disabilities and their families.
See http://www.mhlac.org/ContactUs.htm
Also, there is a panel of private attorneys who accept these appointments. I am not on that panel, and those who manage and are the memb ers of MHLAC are on that panel. I hope this is helpful, and certainly feel for the dilemma faced by Andy and his now-elderly parents. Courts do not do well with details, and cannot micromanage at all, though often laypersons expect them to do so. That long ago “custody battle” appears to have done great harm and I certainly wish these people well.
It looks as though there is some connection between the MHLAC and the CPCS, which Stan McDonald did contact.
And the exact relationship between the quasi governmental agencies that manage these appointments has never been 100% clear, but that there are specialties that have separate management, at least to some degree, is true and just how information is passed between these various management entities is also not clear to me. Thank you for the update; I am following your updates on this thread. I was at one time an activist within CPCS but between my own health and family issues the last few years I have taken a less active role.