Monday, September 6, 2021
Massachusetts Supreme Court Holds Conservator Entitled to Absolute Immunity for Conduct "Authorized or Approved" by Probate Court
In a case of first impression for the high court in Massachusetts and decided in August 2021, the Supreme Court concluded that where a conservator acts on behalf of an elderly woman "pursuant to judicial approval as a quasi-judicial officer," the conservator is entitled to "absolute immunity for conduct that is authorized or approved by the probate court."
In Hornibrook v. Richard, the plaintiff is one of two sons of a woman in her "mid-eighties and suffering from progressive dementia due to Alzheimer's Disease." He was appointed by a Massachusetts probate court to serve as guardian for his mother, but when his allegedly neglectful brother objected to his appointment as a permanent guardian for their mother, the probate court appointed a Massachusetts licensed attorney, selected from a list of qualified attorneys, to serve separately as the conservator. The dual appointments occurred in the context of a serious, ongoing dispute between the woman's two sons. It seems clear the court appointed the nonfamily-member conservator in an effort to diffuse the family dynamics.
Instead, attempts by the conservator to evict or negotiate with the resident-son from the mother's home appear to have dragged on for months, and the mother was never able to return to home. The guardian-son eventually sued the conservator, alleging (1) breach of fiduciary duty, (2) malpractice, (3) conversion, and (4) fraud.
The Supreme Court used Massachusetts' "functional analysis" for determining whether an individual performs a quasi-judicial function that entitles the officer to "absolute immunity." The court compared the case to prior Massachusetts immunity decisions involving a court-appointed psychiatrist, court clerks, guardian ad litem in family court, and a personal representative in an estate, concluding that where individuals are appointed to perform "essential judicial functions" they are entitled to absolute immunity.
Facts that appeared to be key to this ruling included the conservator's formal request for court authority to take specific, disputed actions, such as renovating the house and placing it on the market for sale.
The court issued a de-facto caution, however, that immunity may not be granted for all actions taken by a conservator:
"Because the plaintiff here does not allege that the defendant was acting outside the express authorization of the probate court, we do not address the extent to which the conservator may be liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court."
One can anticipate more motions and probate hearings being sought by guardians -- at least the cautious guardians -- as a result of this ruling. But one can also expect that family members resentful of slow-moving protective-probate proceedings will not be reassured by this ruling.