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In Hornibrook v. Richard, the SJC Sidesteps Its Responsibilities and May Have Made Practicing Law in Massachusetts Probate Court More Complicated

September 30, 2021

In Hornibrook v. Richard, 488 Mass. 74 (2021), the Supreme Judicial Court of Massachusetts (“SJC”) has ruled that when a court-appointed Conservator has explicit authorization from the Probate Court to take some financial action on behalf of the protected person, the Conservator cannot be sued because the Conservator is functioning as an arm of the Probate Court and therefore has quasi-judicial immunity. Where a judge is entitled to judicial immunity and therefore is “exempt from liability to an action for any judgment or decision rendered in the exercise of jurisdiction vested in him by law, and a Conservator is appointed by a judge, the SJC decided that since a “conservator is a nonjudicial person fulfilling quasi judicial functions … the conservator shares in the judge’s absolute immunity.”

Unfortunately, the SJC did not bother to express any opinion whatsoever about whether the Conservator would have quasi-judicial immunity for taking actions that are based on the powers automatically given to Conservators under Massachusetts law. If Massachusetts law gives a Conservator the power to take some discretionary actions, and if the Conservator is protected from liability by relying on those powers, why couldn’t the SJC have come right out and made that point? In ducking that question, it seems that the SJC, which is supposedly in charge of the administration of justice in the Commonwealth of Massachusetts, apparently did not think through whether it was creating a needless mess for the courts below it in the court hierarchy. Conservatorships were already messy; in some situations, a conservatorship has been established due to some degree of family dysfunction, and every Conservator is ultimately answerable to anybody who inherits from the person under conservatorship. The SJC could have opted to establish guidelines as to when a Conservator would have protection from being second-guessed and sued, but by not commenting the SJC may have done the opposite and opened the door to concerns as to when Massachusetts law can be relied upon as protection for the Conservator’s actions.

The SJC may have unintentionally set in place a new system where a cautious Conservator, or any Conservator who is represented by a cautious lawyer, will have an incentive to obtain explicit permission from the Probate Court for almost any action to be taken so that the Conservator will definitely end up having quasi-judicial immunity. The same reasoning could be applied to Guardianships and Estates, with cautious lawyers not relying on the discretion provided by Massachusetts law and instead attempting to get clear-cut judicial approval of anything even remotely questionable. Thus, Probate Courts could end up with extra work from the motions being filed to obtain quasi-judicial immunity, and much of that extra work would have been needless if the SJC had stepped up and extended its reasoning to at least some of the discretionary powers that are given to Conservators under Massachusetts law.

It appears that the failure of the SJC to make any comment could open the door to frivolous litigation. For the protection of fiduciaries that are under the supervision of the Probate Court, such as Conservators, Guardians, Personal Representatives of estates and Trustees of testamentary trusts, the SJC did provide a bare minimum degree of guidance, however, for we now know that if the fiduciary is acting under a specific court delegation of authority, the fiduciary would have quasi-judicial immunity from lawsuits. Thus, it now may make a great deal of sense when filing an initial petition for the appointment of the fiduciary, or when filing a petition to expand the powers of a fiduciary, to add a lengthy list of the legal and practical issues that the fiduciary may encounter and a request for the authority to deal with these issues. By taking this step, the fiduciary will arguably have the explicit authority from the Probate Court that in the current view of the SJC causes the fiduciary to have quasi-judicial authority. In other words, the petitioner should perhaps act as though there were no Massachusetts laws on the books and simply include the Massachusetts laws as an attachment to the petition so that the Court would specifically grant those powers. These steps may sound unnecessary in a normal case, but that is what the SJC hath wrought; until the SJC ends up with a case that is specifically about whether a fiduciary can be protected by the powers granted in Massachusetts law, and then cannot sidestep its responsibilities to the judicial system, this may be the best way to protect fiduciaries against frivolous lawsuits such as the one that had been filed in the Superior Court in the Hornibrook case.

One Comment leave one →
  1. July 1, 2022 4:31 am

    Indeed, one is used to hearing state courts plead and beckon for less procedural red tape, but here they seem to just want more. What your response to Hornibrook V Richard does not seem to account for is those situations where non-frivolous breach of fiduciary claims are brought. Suppose a conservator shows a clear pattern of reckless disregard for the conservatee’s, or conservatee’s heir’s interest. Perhaps even a reckless disregard that incidentally(let’s say) brings profit to the conservator or the conservator’s associates.
    And yet the conservator put in 3 min of work into their petition for appointment, and just asked for plenary conservatorship. A judge grants the “blank check” powers, but implicitly this is a message to the conservator: “you better do this right, because you are wide open for fiduciary breach claims after”

    Would this not be a simple, just, and low procedural-bandwidth solution to a sweeping crisis of guardianship and conservatorship misuse and abuse?

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