2005-316, IN RE GUARDIANSHIP OF E.L.

guardianship exists. We affirm. make his own medical decisions and that no less restrictive alternative to

guardian proved beyond a reasonable doubt that he remains incapacitated to guardianship. E.L. argues that the probate court erred in finding that the County Probate Court (Hampe, J.) denying his motion to terminate BRODERICK, C.J. The ward, E.L., appeals an order of the Merrimack

Corrections. attorney general, on the brief and orally), for the New Hampshire Department of Kelly A. Ayotte, attorney general (Michael K. Brown, senior assistant

Action Program, Inc., filed no brief. to press. Errors may be reported by E-mail at the following address: Scott D. McGuffin, of Laconia, for the guardian, Tri-County Community

Michael J. Sheehan, of Concord, by brief and orally, for the ward.

editorial errors in order that corrections may be made before the opinion goes No. 2005-316 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack County Probate Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as and he continued to be compliant with taking his prescribed medications.

p. 2 agreed to take the prescribed medication. His behavior reportedly improved, prescribed for him. While E.L. did not agree that he suffered any psychosis, he disorder, and in July 2003, an anti-psychotic medication, Risperidone, was

imprecise. He was diagnosed as suffering from psychotic features of his bipolar

displayed an inability to appreciate the possibility that his memory was

also related memories of events in prison that could not have happened and therapy sessions and interfering with his transfer to a prison in Maine. E.L. taking lithium. According to his therapist, E.L. suspected she was reading his mail, recording August 1996. His guardianship continued, and he remained cooperative in years in prison. He was transferred to the prison’s general population in

explore other medications should the side effects continue. substitute drug. His treatment team agreed to a dosage reduction and to desire to stop taking Risperidone, or at least reduce the dosage or switch to a

inmates that in his therapist’s view had the potential to incite arguments.

was deemed competent and was sentenced to seven and one-half to fifteen

E.L., his son suffers from diabetes, as did his late father. He expressed a

during therapy sessions related provocative language he used with fellow 2 unkempt and disheveled, would not bathe, spoke “legal mumbo jumbo” and mood-stabilizing medication, and his condition improved. By June 1996, E.L. behavior and made delusional statements. Specifically, he reportedly was followed medical advice. He cooperated in taking lithium carbonate (lithium), a guardian was appointed to ensure that he took prescribed medication and

Risperidone. He grew concerned that it could cause diabetes. According to

Tri-County Community Action Program, Inc. In 2003, E.L. exhibited psychotic

increasingly aggressive. He was diagnosed with bipolar disorder, and a

At some point, E.L. complained that he was suffering side effects from

the prison, and Bonnie Ham, E.L.’s designated staff guardian, who works for prescribing and monitoring E.L.’s medication, Laura Magzis, E.L.’s therapist at and refused medication. By November 1995, his behavior was reported to be advanced registered nurse practitioner who is primarily responsible for staff, failed to follow rules, displayed inappropriate behavior, lacked self control was transferred to the most restricted unit because he verbally abused the

E.L.’s current treatment team consists of Catherine Fontaine, an

Hampshire State Prison. While at SPU, his behavior fluctuated. At times, he

sentenced and confined to the Secure Psychiatric Unit (SPU) at the New convicted of sexually assaulting his wife. He was deemed incompetent to be The following facts could be found from the record. In 1994, E.L. was

beyond a reasonable doubt that: imposed over a person only after finding in the record based upon evidence

beyond a reasonable doubt the existence of each factor delineated by RSA 464-

herself or his or her estate.” RSA 464-A:9, I (2004). Guardianship may be

RSA 464-A:9.” RSA 464-A:40, II(c). Accordingly, the guardian must prove her property and financial affairs; and required to prove . . . the grounds for appointment of a guardian provided in provided for in RSA 464-A:8 and RSA 464-A:9 at which the guardian shall be proposed ward; and (b) [a]scertain his or her capacity to care for himself or affairs of the incapacitated person; and

safety, and rehabilitation or the prudent management of his or

terminate] is without merit, the court shall hold a hearing similar to that [i]nquire into the nature and extent of the functional limitations of the (2004). At a hearing convened on such a petition, the probate court must “(a) individual, or the management of the property and financial proposed ward is incapacitated and in need of a guardian.” RSA 464-A:8, IV

suitable with respect to the incapacitated person’s welfare,

When a ward seeks to terminate guardianship, “[u]nless the motion [to

RSA 464-A:9, III (2004). continuing care, supervision, and rehabilitation of the proving with “competent evidence [and] beyond reasonable doubt that the civil rights and liberties of the proposed ward. form of intervention consistent with the preservation of the (d) The guardianship is appropriate as the least restrictive

(c) There are no available alternative resources which are motion, and this appeal followed.

(b) The guardianship is necessary as a means of providing capacity, and the party seeking guardianship bears the heavy burden of incapacitated; and guardian. RSA 464-A:4, I (2004). By statute, there is a legal presumption of (a) The person for whom a guardian is to be appointed is finding of incapacity with respect to a proposed ward and the appointment of a

April 2005, after an evidentiary hearing, the probate court denied E.L.’s reported that in his judgment, the limited guardianship should continue. In psychiatrist Gerald Lazar conducted an independent evaluation of E.L. and

Any interested person may file a petition with the probate court seeking a

year guardianship. His guardian opposed the motion. In February 2005, In 2004, E.L. requested the probate court to terminate his nearly tenduring the time he decompensated. p. 4 and could result in an injury to [E.L.] or some other person

implemented. This would make further treatment more difficult

insight into his illness.

findings could be reasonably made given the testimony and the evidence before it would require [E.L.] to decompensate before it could be A springing guardianship would not meet [E.L.’s] needs because of attorney would not be sufficient because [E.L.] could cancel it. “within the province of the trial court to accept or reject, in whole or in part, 567-A:4 (1997); credibility of evidence,” In re Estate of King, 151 N.H. 425, 429 (2004). It lies trier of fact, it is in the best position to “measure the persuasiveness and Guardianship of Kapitula,153 N.H. 492, 497 (2006), recognizing that as the witnesses, and determin[e] the weight to be given to testimony,” In re probate court to resolve “conflicts in testimony, measur[e] the credibility of this would not reflect an informed decision. [E.L.] has limited it. In re Buttrick, 134 N.H. 675, 676 (1991). We defer to the judgment of the

review the record of the probate proceedings to determine if the probate court’s the evidence to determine whether we would have ruled differently. Rather, we court decisions are governed by RSA chapter 567-A). Thus, we do not reweigh the consent of his guardian. limited guardianship is the least restrictive alternative. A power see RSA 464-A:47 (2004) (providing that appeals from probate they are so plainly erroneous that [they] could not be reasonably made.” RSA administered because of the existence of the guardianship and By statute, “[t]he findings of fact of the [probate court] are final unless

The petition to terminate the guardianship is denied.

the opinion of Gerald Lazar, M.D., an independent psychiatrist, desire to stop taking Risperidone because of its side effects. In his own medical decisions. However, he has repeatedly stated his

making medical decisions. The court further finds that the has been effectively treated with medications which [have] been granted remain. [E.L.] remains incapacitated with respect to The court finds that the reasons that the guardianship was

guardianship was granted remain.” The probate court’s decision explained:

limited to medical issues. He thinks that he is capable of making [E.L.] would like to terminate his guardianship which is

with Psychotic Features or Schizoaffective Disorder. His illness Personality Disorder and either Bipolar Affective Disorder, Manic [E.L.] suffers a mental illness. His diagnosis is Antisocial

In this case, the probate court concluded that “the reasons that the

the least restrictive form of intervention. necessary; (3) no suitable alternative resources exist; and (4) guardianship is himself and others.

p. 5 helped him, thereby causing him to decompensate and pose a danger to guardianship is to discontinue the very medications which have dramatically State, the evidence establishes that E.L.’s sole motivation for terminating

illness and the consequences of stopping his medications. According to the

success of the guardianship, he has limited insight and judgment about his

that while the symptoms of E.L.’s mental illness have abated due to the Risperidone. The New Hampshire Department of Corrections (State) contends soundness of his reasons for wanting to stop or reduce his intake of

his or her property or financial affairs.” needs for food, clothing, shelter, health care or safety or an inability to manage

his consent to continued consultation with medical providers and the

likely to suffer substantial harm due to an inability to provide for his personal

his ten-year history of full compliance with taking his prescribed medications, 5 According to him, substantial evidence establishes his competency, including occurrences demonstrates beyond a reasonable doubt that he is incapacitated.

To be deemed incapacitated, a person must have “suffered, [be] suffering or [be]

own medical decisions. E.L. argues that no evidence of recent acts or

a person’s “functional limitations,” id.; that is,

Incapacity is “a legal, not a medical, disability.” RSA 464-A:2, XI (2004).

finding beyond a reasonable doubt that E.L. remains incapacitated to make his statutory components beyond a reasonable doubt.

both necessary statutory components for the continuation of guardianship,

We first turn to whether the evidence supports the probate court’s whether it supports the probate court’s finding that the guardian proved these

incapacitated and that no less restrictive alternative to guardianship exists, (1998) (quotation omitted). plainly erroneous as a matter of law.” In re William A., 142 N.H. 598, 600 disturb the probate court’s decree unless it is unsupported by the evidence or evidence. See id.; In the Matter of B.T., 153 N.H. 255, 259 (2006). “We will not components required for guardianship are reasonably supported by competent the probate court’s actual or implicit factual findings on the statutory Because E.L. challenges the sufficiency of the evidence, we examine whether

RSA 464-A:9, III(a), (c), (d). Our task is to review the record to determine

evidence demonstrates beyond a reasonable doubt that he remains On appeal, E.L. argues that the probate court erred in finding that the

497-98 (quotation omitted). whatever evidence was presented.” In re Guardianship of Kapitula, 153 N.H. at p. 6 “My illness is not severe and I do as well off meds as on them.”

degree people say.” Indeed, in his motion to terminate guardianship he stated:

Further, E.L. told Lazar that he believes that he is “not mentally ill to the that he committed the assault, stating that his wife fabricated the charge. incarcerated, is likely connected to his mental illness. Yet, E.L. denied to Lazar

as on them.” While portions of the record suggest that E.L. may be amenable

testified that E.L.’s sexual assault of his wife, the crime for which he is

in his motion to terminate guardianship, E.L. asserted: “I do as well off meds

gravity of the symptoms he displays when not taking proper medication. Lazar

himself.”

his guardian that he wanted a “medication holiday” to see how he feels. Again, necessary or because he is concerned about their side effects. E.L. informed suffers from bipolar disorder, there is evidence that he does not appreciate the taking his prescribed medications either because he does not believe they are features from his bipolar condition. While E.L. may acknowledge that he conclude that upon termination of the guardianship, E.L. intends to stop and Fontaine testified that he does not believe that he suffers psychotic In addition, evidence in the record permits a reasonable person to

daily living that secure and maintain proper . . . health care or safety . . . for

currently suffering or be likely to suffer “substantial harm.”

With respect to E.L.’s understanding of his mental illness, both Lazar

likely occur without the medical guardianship. minimal activities necessary for his health care such that substantial harm will that impair E.L.’s “ability to participate in and perform minimal activities of beyond a reasonable doubt that E.L. is unable to participate in and perform the himself and others. Considered as a whole, this evidence supports a finding health care or safety; and (2) this inability has caused him to have suffered, be and is likely to decompensate without medication, thus posing a danger to potential consequences of ceasing or modifying his current medication regime prescribed medications, is unable to exercise sound judgment about the E.L. has limited insight into his mental illness, intends to stop taking his The record contains competent evidence to support the conclusion that

health care or safety for himself or herself. See RSA 464-A:2, VII. living that secure and maintain proper food, clothing, shelter,

XI. We particularly examine the record for evidence of “behavior or conditions”

reasonable doubt that: (1) he is unable to provide for his personal needs for must demonstrate that no reasonable fact finder could find beyond a he continues to have an incapacity for making sound medical decisions, E.L. RSA 464-A:2, VII (2004). Therefore, to overturn the probate court’s finding that

ability to participate in and perform minimal activities of daily behavior or conditions in an individual which impair his or her remains meaningfully impaired. As Lazar testified, “It’s hard to make an

p. 7 appreciates the need for them.

finding that his ability to exercise sound judgment about his medical treatment

due to the compulsory nature of the guardianship and not because he

interrupting a medication regime that has effectively treated it, supports the his mental illness, as well as his failure to appreciate and consider the risks of or altered his medications and decompensated. E.L.’s limited understanding of reasonably found that E.L. has been compliant with prescribed medications

appreciation for the symptoms that would likely arise in the event he stopped because he is “[told] to do it.” Therefore, the probate court could have himself testified that he would continue to take Risperidone and lithium because he believed that refusing to do so would cause him difficulties. E.L.

however, is devoid of evidence that reveals his consideration of and illness and needs lithium. His testimony, as well as the remaining record, but that over time he has grown to accept that he is afflicted with a mental 7 which noted that E.L. remained compliant with taking prescribed medications

suffering from bipolar disorder because he did not want to be labeled a “freak,” on medication.” Lazar’s report refers to a January 2000 treatment plan review that he knows that he has someone else who has control over his need to stay that “[p]art of why he [maintains consistency with his medication] is the fact

focused exclusively upon the side effects. E.L. testified that he initially denied effects of his medications, evidence would support a finding that E.L. has Although E.L.’s treatment team affirmed his concerns about the side medications before the guardianship was ordered. Further, Fontaine testified particular treatment plan. reasonably weigh the competing risks involved with accepting or rejecting a illness and the efficacy of medication, he lacks the ability to rationally and that while E.L. can understand all the factual information concerning his in deciding upon a particular course of medical treatment. Lazar explained may disagree with, he testified that E.L. is unable to exercise sound judgment and refuse treatment in a sound manner for reasons the medical professional regime. While Lazar noted that it is possible for someone to have an illness sound judgment in assessing the risk of interrupting his current medication The record also would support a finding that E.L. is unable to exercise

guardianship. Although requested to do so, E.L. refused to take any the conclusion, however, that his compliance has been the direct result of the

ceasing his medications. having assessed witness credibility, to conclude that E.L. was intent upon

medications since his guardianship was imposed in 1995. Evidence supports No one disputes that E.L. has been compliant with his prescribed

another anti-psychotic medication, it was within the probate court’s discretion, to continuing lithium and maintaining a reduced dosage of Risperidone or lengthy process, if not impossible. p. 8 be diminished and that restoring his current good functioning could be a the prison’s general population, that his opportunity for parole in 2008 could

could only rely upon evidence of acts that occurred within six months of the

expressed concern that should E.L. decompensate, his relationship with others danger to himself and others. Lazar and members of the treatment team also contend that by statute, to prove that he remains incapacitated, the guardian refuse to take his medications, he will likely decompensate and become a support continuation of the guardianship. See RSA 464-A:40. E.L. appears to relevant, and that the guardian failed to present sufficient recent evidence to E.L. argues that the acts which gave rise to guardianship in 1995 are not

expressed concern about his history of violence and testified that should he were connected to his mental illness. E.L.’s treatment team and Lazar himself Lazar testified that E.L.’s crimes involving children and his wife likely

wife and blamed her for fabricating the charge. prison fight considering that he denied to Lazar that he sexually assaulted his court could have reasonably questioned the credibility of E.L.’s account of the treatment team concluded could trigger arguments. Moreover, the probate interactions with other inmates where he used provocative language that the treatment team, before E.L. began taking Risperidone, he would report his bipolar disorder and prescription for Risperidone. According to his occurred about one year prior to the diagnosis of the psychotic component to provoked the altercation in any manner, evidence shows that this fight injuries required reconstructive surgery. Although E.L. denies that he prison fights. The second fight, in 2002, was so significant that his facial While incarcerated and medicated only with lithium, E.L. was in two

favorable outcome.” began to take prescribed medication, and his behavior substantially improved. not treat as well as to treating and make a decision based on the most displayed obsessive behavior. Once guardianship was imposed, however, he behavior and lacked self control. He also refused to take medications and verbally abused the staff, failed to follow rules, displayed inappropriate his conviction, he was at times confined in the most restrictive unit because he reported that he beat her over a five-year period. Once transferred to SPU after assaulting his wife. Further, there is evidence in the record that E.L.’s wife cruelty towards children, and he currently is incarcerated for sexually adequately medicated. The record refers to his prior convictions for willful Finally, there is evidence of E.L.’s prior dangerousness when not

the fact that you have a particular illness and that there are consequences to informed decision about your medications if you don’t have an appreciation for p. 9 While having secured some ability to provide for his personal needs, the ward

as a result of the proper attention and care provided through the guardian.

464-A:9 days of the filing of the petition for guardianship.

manifestations of incapacity may have decreased, if not completely dissipated,

[must] prove that the grounds for appointment of a guardian provided in RSA appointment of a guardian. At the termination proceeding, “the guardian incidence of such behavior must have occurred within 20 termination proceeding would be identical to an initial proceeding seeking the

been deemed incapacitated and is under guardianship care, the outward the ward remains incapacitated, see RSA 464-A:9, III(a). For a ward who has

continue to exist,” id. (emphasis added), including, necessarily, that

months prior to the filing of the petition and at least one to,” the legislature understood that not all aspects of a guardianship A:9.” RSA 464-A:40, II(c) (emphasis added). By utilizing the phrase “similar imminent acts or occurrences.” conducts “a hearing similar to that provided for in RSA 464-A:8 and RSA 464- When a ward seeks to terminate guardianship, the probate court

termination of guardianship. Id. This specific time requirement, however, does not apply to proceedings for property or financial affairs. whole.

[a]ll evidence of inability must have occurred within 6

absurd result.. . . be evidenced by acts or occurrences, or statements which strongly indicate RSA 464-A:2, XI (emphasis added). The statute requires that such “[i]nability ordinary meanings to words used.

health care or safety or an inability to manage his or her intent of the legislature as expressed in the words of a statute considered as a provide for his personal needs for food, clothing, shelter, or is likely to suffer substantial harm due to an inability to to mean or refer to any person who has suffered, is suffering

As noted earlier, “incapacity” is defined

See State v. Warren, 147 N.H. 567, 568 (2002).

statutory language in a literal manner when such a reading would lead to an

language found in the statute, and where possible, we ascribe the plain and Snedeker v. Snedeker, 145 N.H. 19, 20 (2000). We first examine the

In matters of statutory interpretation, we are the final arbiter of the

only to initial petitions for guardianship. argues, however, that application of this specific time requirement is relevant date of the filing of the termination motion. See RSA 464-A:2, XI. The State resources, chapter 464-A requires that p. 10 intervention, RSA 464-A:9, II(d). Specifically, with respect to available needs, RSA 464-A:9, II(c), and guardianship is the least restrictive form of

other things, no available alternative resources exist that are suitable to E.L.’s

continue, the record must support beyond a reasonable doubt that, among establishing E.L.’s continuing incapacity in order for the guardianship to that no less restrictive alternative to guardianship exists. In addition to property and financial affairs. and rehabilitation or the prudent management of his or her with respect to the incapacitated person’s welfare, safety,

provides that guardianship must be: Concerning the least restrictive form of intervention, chapter 464-A II(c) requires proof of the ward’s attorney . . . .” RSA 464-A:2, II (2004). is terminated. “alternatives to guardianship including, but not limited to, . . . powers of health care and that he is likely to suffer substantial harm if the guardianship RSA 464-A:9, II(c). “Available alternative resource” is defined to mean

that the guardian sustained its burden of proving beyond a reasonable doubt

specific time period provided under RSA 464-A:2, XI. no available alternative resources [exist] which are suitable

guardian’s burden to prove the continuation of incapacity under RSA 464-A:40,

participate in or perform minimal activities of daily living with respect to his

We next address E.L.’s argument that the probate court erred in finding

presenting evidence of acts, occurrences or statements that occurred within the IV

health care decisions. court’s finding that E.L. continues to have an incapacity for making his own motion would lead to an absurd result. Accordingly, we conclude that while a See RSA 464-A:2, VII, XI. Accordingly, we uphold the probate occurrences or statements that happened within six months of the termination continuation of the ward’s incapacity based exclusively upon evidence of acts, court’s finding beyond a reasonable doubt that E.L. is presently unable to In sum, we conclude that evidence in the record supports the probate

care as defined under RSA 464-A:2, XI, the guardian is not restricted to

for a guardianship. In such a case, requiring the guardian to prove the may not have necessarily regained capacity to the degree that obviates the need when taken again after an interruption. p. 11 because in some cases medicine that was once effective may be ineffective concern that if E.L. decompensated, he might not be able to be stabilized again

guardianship is actually reinstated. The medical professionals expressed

decompensation is detected, a decision is made to trigger guardianship and explained that “[t]here would be a lag time” between the moment E.L.’s immediately visible to others, including his treatment team. Lazar also

other person during the time he decompensated.

more difficult and could result in an injury to [E.L.] or some could be implemented. This would make further treatment monitor E.L.’s behavior, Lazar testified that if guardianship were terminated needs because it would require [E.L.] to decompensate before it incarceration would permit prison officials and medical personnel to closely change or discontinue his current medication regime. While E.L.’s

or symptoms arise. The probate court found: rejection of the alternatives to continued guardianship.

limitations. cancel it. A springing guardianship would not meet [E.L.’s] liberties consistent with his or her mental and physical As discussed earlier, the evidence supports a finding that E.L. intends to

guardianship would “spring” into effect should certain prescribed events occur We conclude that there is sufficient evidence to support the probate court’s

A power of attorney would not be sufficient because [E.L.] could shall enjoy the greatest amount of personal freedom and civil

Under these alternatives, a power of attorney would be invoked or a evidentiary hearing: medical power of attorney and springing guardianship. Evidence was presented on two alternatives to guardianship at the

RSA 464-A:2, XIV (2004). the proposed ward.

needed care and rehabilitative services, and that the ward those limitations necessary to provide him or her with that the guardianship imposed on the ward represents only

RSA 464-A:9, II(d). “Least restrictive form of intervention” is defined to mean

consistent with the preservation of civil rights and liberties of appropriate as the least restrictive form of intervention guardianship exists. p. 12 find beyond a reasonable doubt that no less restrictive alternative other than as a whole, we conclude that it was not unreasonable for the probate court to

guardianship or a health care power of attorney. In sum, taking the evidence

probate court’s finding that E.L. is not an appropriate candidate for a springing judgment concerning his current medication regime, evidence supports the a guardian. Given E.L.’s limited insight into his illness and his impaired

medication, and who would remain compliant with medication with or without

court’s denial of E.L.’s motion to terminate guardianship.

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

explained that a springing guardianship may be appropriate for an individual due to the fact that another person controls his decision to take it. She evidence in the record is sufficient as a matter of law to support the probate

to E.L.’s clinical treatment because he consistently maintains his medication Fontaine testified that the structure of guardianship itself is significant