From left: Marlee S. Cowan and Stephanie Addeo
In Hornibrook v. Richard, 488 Mass. 74 (2021), the Massachusetts Supreme Judicial Court (SJC) has held that a conservator appointed by the Probate Court acting pursuant to judicial approval is a “quasi-judicial officer” and is thus entitled to immunity while acting within the scope of express judicial approval. The SJC also stated that when a conservator’s actions are not specifically authorized or approved by the Probate Court, the conservator is no longer acting as an agent of the court and may therefore be held personally liable. However, the SJC did not address whether a court-appointed conservator would be held personally liable for acts that are based on the statutory powers automatically provided for under Massachusetts law. Certainly, the outcome in Hornibrook raises several questions for those in the world of probate. Specifically, what does this mean not only for future conservators, but also other instances in which a person is placed in a fiduciary role? Did the SJC in its decision inadvertently put in place a new unwritten procedure wherein a conservator is now inclined to seek express permission from the Probate Court for nearly any action to be taken in order to ultimately be protected under quasi-judicial immunity? If so, what impact will this have on the Probate Court?
In Hornibrook, the Probate Court appointed Cherilyn Richard (“Richard”) as conservator for Kathleen Hornibrook (“Kathleen”). In her capacity as conservator, Richard sought permission from the Probate Court for inter alia a license to sell real estate — Kathleen’s house. For sake of brevity, after a few years in this role, Kathleen’s son, Kevin Hornibrook (“Kevin”), acting in his capacity as guardian and then personal representative, brought suit against Richard for breach of fiduciary duty, malpractice, conversion and fraud. Kevin argued that Richard wasted Kathleen’s resources during the process of trying to sell Kathleen’s house. The Superior Court held that a conservator is privy to quasi-judicial immunity when acting within the scope of his or her duties, and that in order to prevail, Kevin needed to demonstrate that Richard was acting outside the scope of the express judicial approval afforded to her. Following an appeal from the Superior Court on the judge’s denial of the motion to dismiss on the breach of fiduciary duty and conversion counts, the SJC transferred the case to its court on its own motion.
In its standard of review, the SJC reiterated the well-settled principle of judicial immunity extending to judges, and cited cases to show that judicial immunity has been extended to individuals who perform quasi-judicial functions. In making such a determination, the court will look at the “nature of the duties performed” and whether those duties are “closely associated with the judicial process.” The SJC relied on the public policy that when an officer of the court is considered to be essential to the judicial process, that officer should be able to act freely without fearing the threat of a lawsuit. As such, the SJC ruled that quasi-judicial immunity applied to Richard with regard to selling the home because she was “acting under the authority of the court in effectuating the sale of the house” and the related eviction proceeding. The SJC noted that when a person is “acting as directed or authorized by a judge … [such person] … functions ‘as an arm of the court.’”
However, the SJC warned that quasi-judicial immunity granted to conservators for actions taken with the express authority of the Probate Court “does not mean that conservators are entitled to absolute immunity in all circumstances.” Importantly, the SJC does not address the “extent to which a conservator may be held liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court.”
It is no secret that the Probate Court is consistently inundated with a tremendous caseload and staffing shortages, even more so given the COVID-19 pandemic, which has significantly impacted how a case makes its way through the court and the way attorneys practice. With this recent holding, attorneys and fiduciaries may now be inclined to obtain unambiguous judicial approval for any actions to be taken to ensure their actions are considered to be executed as an arm of the court. However, from a practical perspective, if a conservator is acting in good faith within the parameters of the statutory powers afforded, it seems logical that an argument could be made that the conservator should be protected from liability. Furthermore, conservators who have obtained sureties on their bond should also take comfort in the protection provided by the bond.
It will be interesting to see how the Hornibrook ruling affects the future handling of conservatorship matters and whether fiduciaries elect to file petitions and motions seeking specific authorization from the Probate Court for certain actions. As a result, will this produce an unmanageable amount of work for the Probate Court, particularly when often such requests are sought on an expedited basis? On the other hand, fiduciaries may feel comfortable that quasi-judicial immunity would extend to actions taken pursuant to statutory powers because by nature of the decree appointing them as fiduciaries, they are provided express authorization from the Probate Court to act in accordance with the statute. Finally, time will tell to see how the Hornibrook ruling extends to other court-appointed fiduciaries.
Marlee S. Cowan is a partner with Rubin & Rudman LLP in Boston. She focuses her practice on probate litigation, guardianships, conservatorships, trust disputes, will contests, estate and probate administration, estate planning, and tax matters. Cowan is the current vice president of the Board of Directors for the Massachusetts Guardianship Association, where she also previously served as president of the Board of Directors and co-chair for the Annual Guardianship Conference. Cowan is also a member of the Board of Directors for the Boston Estate Planning Council, co-chair of the Fiduciary Litigation Subcommittee for the Boston Bar Association, a member of the Probate Law Section Council for the Massachusetts Bar Association and a club development director for USA 500 Clubs. Cowan has been designated as a Rising Star by Super Lawyers for each consecutive year beginning in 2015 and is a frequent speaker on probate litigation topics. Cowan is a graduate of the University of California at Berkeley and New England School of Law, where she received numerous academic awards.
Stephanie Addeo is an associate attorney with Rubin and Rudman LLP, whose practice concentrates on representing both individuals and families with estate and probate administration, probate litigation, guardianships, conservatorships, fiduciary matters, estate planning and trust administrations. She also has a background in family law, where she has represented clients in divorce matters, child custody and various support disputes. Addeo graduated with distinction from Suffolk University Law School with a concentration in trial and appellate advocacy.