Guardianship of C.A.

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21-P-1047 Appeals Court

GUARDIANSHIP OF C.A.

No. 21-P-1047.

Bristol. October 11, 2022. – March 15, 2023.

Present: Sacks, Hand, & Grant, JJ.

Guardian, Incompetent person, Consent to medical treatment.
Incompetent Person, Consent to medical treatment. Probate
Court, Incompetent person. Mental Health. Practice,
Civil, Guardianship proceeding.

Petition for appointment of a guardian filed in the Bristol
Division of the Probate and Family Court Department on December
13, 2018.

The case was heard by Richard J. McMahon, J.

Ilse Nehring for C.A.
Cassandra Bolanos, Assistant Attorney General, for the
Department of Mental Health.

GRANT, J. After a trial, a judge of the Probate and Family

Court found the respondent, C.A., to be an incapacitated person,

and entered a decree and order pursuant to G. L. c. 190B,

§ 5-306, appointing a limited guardian to make medical
2

decisions. The guardian was further authorized to consent to

and monitor the administration of antipsychotic medication to

C.A. according to a treatment plan, pursuant to G. L. c. 190B,

§ 5-306A, and Rogers v. Commissioner of Dep't of Mental Health,

390 Mass. 489, 504 (1983). That treatment plan authorized the

administration of Zyprexa, the medication that C.A. had been

taking, and authorized administration of "alternative

medications" if Zyprexa "no longer benefits" her. C.A. appeals,

arguing that there was insufficient evidence that she is an

incapacitated person and that the judge erred in concluding

that, if C.A. were not incapacitated, her substituted judgment

would be to consent to the administration of antipsychotic

medication. C.A. further argues that, to the extent that the

judge's order authorized the administration of alternative

medications including Invega and Latuda, it was premature. We

conclude that the judge did not have sufficient evidence to

determine that C.A.'s substituted judgment would be to accept

Invega or Latuda, and we vacate so much of the April 30, 2021

decree and order as authorized the administration of those two

drugs. We affirm the remainder of the decree and order.

Background. The Department of Mental Health (DMH)

petitioned the Probate and Family Court for appointment of a

guardian to make medical decisions (among others) and for

substituted judgment (Rogers) authorization to treat C.A.
3

involuntarily with antipsychotic medication in accordance with a

treatment plan. The petition sought approval of a treatment

plan to administer Zyprexa, and also sought authority to

administer the alternative antipsychotic medications. Through

counsel, C.A. objected to the petition.

Based on the evidence at the January 2021 trial, the judge

found as follows. At the time of trial, C.A. was seventy-eight

years old and had a diagnosis of paranoid schizophrenia. For

the previous eight years, C.A. had lived on her own in an

apartment, and was able to meet her own basic self-care needs,

such as bathing and dressing herself, preparing her own meals,

and using public transportation to go grocery shopping and to

medical appointments.

The main issue at trial was, as the judge phrased it,

whether C.A. had "the capacity to self-monitor the

administration of antipsychotic medications."1 The judge

credited the testimony of C.A.'s psychiatrist, Dr. Lucyna

Czarnota-Dolliver, that when she began treating C.A. in 2008,

C.A. was taking Zyprexa for paranoid schizophrenia, and that the

condition was "well-controlled." As of trial, C.A. was taking

1 As discussed below, the judge's consideration of C.A.'s
"capacity to self-monitor" encompassed not only her taking the
medications, but also her ability to understand their benefits
and side effects and to monitor for those side effects.
4

thirty milligrams of Zyprexa Zydis by mouth daily at bedtime.2

Dr. Czarnota-Dolliver testified that Zyprexa may cause side

effects including high glucose levels, high cholesterol,

increased blood pressure, weight gain, and involuntary movements

including tremors. The doctor testified that when she

recommended that C.A. undergo blood tests to monitor for those

conditions, C.A. refused, insisting that she did not have high

blood pressure or high cholesterol. The judge credited the

clinician's affidavit of Dr. Czarnota-Dolliver, which was

admitted in evidence without objection.3 In it, the doctor

opined that C.A. had "limited ability to fully participate in

[an] informed consent decision discussion" and "[d]ifficulties

manipulating the information to make an informed decision"; the

doctor also testified to that opinion.

C.A. testified that she did not have a mental illness.

Asked if she was taking medication, she replied that she was,

2 Zyprexa Zydis is a form of the drug administered orally.
As discussed below, Zyprexa also may be administered by
intramuscular injection.

3 See G. L. c. 190B, § 5-306A (a) ("When approving and
authorizing an antipsychotic treatment plan by order or decree,
the court shall consider the testimony or affidavit of a
licensed physician . . . regarding such plan"). See also
Guardianship of A.R., 99 Mass. App. Ct. 349, 354 (2021) ("A
medical certificate affidavit may be used at the time of the
final determination of incapacity in the limited circumstances
when counsel for the incapacitated person does not object to its
use").
5

but that she did not know who prescribed it. C.A. offered no

explanation for her refusal to be monitored for the possible

side effects of Zyprexa.4

The judge appointed the guardian for the limited purpose of

making medical decisions for C.A. and monitoring "the ongoing

administration of antipsychotic medication and other

medications," and authorized the Rogers treatment plan which

permitted continued administration of Zyprexa orally and by a

different modality, intramuscular injection. The treatment plan

also permitted administration of two alternative antipsychotic

medications: Invega, administered either orally, by

intramuscular injection monthly, or by intramuscular injection

every three months; or Latuda, administered orally.5 The judge

set forth his findings of fact, rationale, and conclusions of

law. C.A. filed a timely notice of appeal.

Discussion. In this context, to meet the standard for

appointment of a guardian with Rogers authority, DMH was

Before trial, C.A.'s counsel had asserted in an affidavit
4

of objection that C.A. objected to the guardianship petition on
the grounds that "she does not like the potential for side
effects and does not feel the medications are necessary." C.A.
did not testify to those reasons at trial.

The judge referred to them as "five (5) alternative
5

medications," counting injectable Zyprexa as a different drug
from Zyprexa taken orally, and counting separately each of the
three ways Invega could be administered. We consider them to be
two alternative antipsychotic medications: Invega and Latuda.
6

required to prove by a preponderance of the evidence that C.A.

was an incapacitated person within the meaning of G. L. c. 190B,

§§ 5-101 (9), 5-306, and that, if she were not incapacitated,

C.A. would choose to be treated by antipsychotic medication.

See Guardianship of A.R., 99 Mass. App. Ct. 349, 353, 358

(2021); G. L. c. 190B, § 5-306A. We review the judge's ruling

for abuse of discretion or other error of law. See Guardianship

of Linda, 401 Mass. 783, 786-787 (1988).

1. Incapacitated person. C.A. argues that the evidence

was insufficient to support the judge's finding that she was an

incapacitated person. Specifically, C.A. contends that the

judge (1) applied the wrong legal standard by conflating the

statutory definition of an incapacitated person with the common-

law test for competency to give informed consent; (2) improperly

relied on the doctor's testimony that C.A. had refused to

undergo blood testing to monitor for the side effects of

Zyprexa; (3) should have found, based on evidence that C.A. was

able to live independently and care for herself, including by

taking Zyprexa, that C.A. was not an incapacitated person; and

(4) improperly considered facts not admitted in evidence. We

consider each of those issues in turn.

a. Definition of incapacitated person. As defined in

G. L. c. 190B, § 5-101 (9), an "incapacitated person" is
7

"an individual who for reasons other than advanced age
or minority, has a clinically diagnosed condition that
results in an inability to receive and evaluate
information or make or communicate decisions to such
an extent that the individual lacks the ability to
meet essential requirements for physical health,
safety, or self-care, even with appropriate
technological assistance."

In concluding that C.A. was an incapacitated person, the judge

cited to that statute and closely paraphrased that definition.

Simply because the judge sometimes used the words "competency"

and "capacity," which was the terminology in cases that predate

the adoption of § 5-101 (9), see St. 2008, c. 521, § 9, does not

mean that the judge applied the incorrect definition of an

incapacitated person.6

b. Refusal to undergo blood testing. C.A. argues that the

judge improperly relied on C.A.'s refusal to undergo blood

testing as the basis of his finding that C.A. was an

incapacitated person. The record shows that the judge did not

rely solely on C.A.'s refusal to undergo blood testing, but also

on her inability to have a meaningful discussion with her doctor

on the subject. The judge credited information from Dr.

Czarnota-Dolliver's affidavit and testimony that C.A. was unable

6 C.A. cites to the District Court Standards of Judicial
Practice: Civil Commitment and Authorization of Medical
Treatment for Mental Illness (rev. Apr. 2019), which pertain to
commitment proceedings pursuant to G. L. c. 123. Those
standards are not pertinent here, and the judge did not cite to
them.
8

to participate in a discussion about the need to monitor her

blood for side effects of Zyprexa in order to make an informed

decision whether to continue that medication. The judge also

credited Dr. Czarnota-Dolliver's testimony that under her care

C.A. had been taking Zyprexa successfully since at least 2008.

The evidence of Dr. Czarnota-Dolliver's opinion that C.A. was

unable to fully participate in the discussion about testing for

side effects of Zyprexa in order to make an informed decision on

that issue allowed the judge to find that C.A. was an

incapacitated person within the meaning of G. L. c. 190B, § 5-

101 (9), for the limited purpose of making medical decisions.

See Guardianship of A.R., 99 Mass. App. Ct. at 356-357 (treating

psychiatrist's testimony sufficed to show that schizophrenic

person was incapacitated).

Also in evidence was C.A.'s own testimony, in which she

denied that she had any mental illness. Asked about her

medications, C.A. said, "I take medication. They changed it.

. . . I don't know who prescribed it." That contrasted with

Dr. Czarnota-Dolliver's testimony that she had been C.A.'s

treating psychiatrist since 2008, seeing C.A. about every two

months, and that since then C.A. had been successfully treated

with Zyprexa. The judge had a first-hand view of C.A.'s

apparent inability to understand and appreciate the nature of

her mental illness and the possible side effects of her
9

prescribed medication.7 The judge's assessment of both

witnesses' testimony is entitled to deference. See Guardianship

of Jackson, 61 Mass. App. Ct. 768, 774 (2004).

Put in terms of the three—part definition of "incapacitated

person" set out in G. L. c. 190B, § 5-101 (9), (1) C.A. had a

"clinically diagnosed condition"; (2) that condition resulted in

her "inability to receive and evaluate information" regarding

her mental health treatment, its potential side effects

including high blood pressure and high cholesterol, and the

appropriate monitoring for such side effects; and (3) therefore

C.A. "lack[ed] the ability to meet essential requirements for

physical health," such as engaging in and cooperating with such

monitoring. The appointment of a limited guardian for the

purpose of making medical decisions was warranted.

c. Incapacitation despite living independently. Contrary

to C.A.'s argument, her ability to live independently and attend

to most of her own needs, including taking her Zyprexa, did not

preclude the judge from finding that she was an incapacitated

person within the meaning of G. L. c. 190B, § 5-101 (9), and

7 The transcript shows that while Dr. Czarnota-Dolliver was
testifying about C.A.'s schizophrenia diagnosis and the side
effects that her medication may cause, C.A. interrupted
repeatedly, stating that she did not have schizophrenia or high
blood sugar, until the judge cautioned C.A.'s counsel about the
interruptions.
10

appointing a limited guardian. Simply because C.A. could

perform many of the tasks of everyday living did not preclude

the judge from finding that she was incapacitated from making

decisions about her medical treatment, including treatment with

antipsychotic medication. "A judge may adjudicate a person to

be competent to make some decisions, but not others" (quotation

and citation omitted). Guardianship of Roe, 411 Mass. 666, 670

(1992).

The judge found that "[w]hile [C.A.] shows great strength

in managing her daily routine and self-care . . . she lacks the

ability to understand that the medication she takes is for a

mental health condition," and as a result "is unable to manage

all the tasks required for keeping up her anti-psychotic

medication." Those tasks, as Dr. Czarnota-Dolliver explained,

included monitoring for the side effects of Zyprexa.

d. Facts not in evidence. Finally, as to C.A.'s claims

that the judge made findings based on information not in

evidence, most of them lack merit. Contrary to C.A.'s argument,

the judge's finding that paranoid schizophrenia "is a disorder

that affects a person's ability to think clearly" was based on

Dr. Czarnota-Dolliver's testimony that C.A. had "fog

disorganization" and "difficulty processing information."

Similarly, the judge's finding that C.A. had been refusing

treatment necessary to monitor her blood pressure was derived
11

from Dr. Czarnota-Dolliver's testimony about C.A.'s inability to

engage in a discussion about the need for her to undergo testing

to monitor for the side effects of Zyprexa.

As C.A. points out, the judge made findings about certain

possible side effects of antipsychotic medications that are not

supported by the record before us.8 In addition, the judge made

findings that C.A. had had prior psychiatric hospitalizations,

but testimony about those hospitalizations had been stricken on

C.A.'s hearsay objections. Those errors did not materially

contribute to the judge's ultimate conclusions that DMH had met

its burden (1) for appointment of a limited guardian, based on

evidence including Dr. Czarnota-Dolliver's testimony about

C.A.'s inability to engage in a meaningful discussion about

monitoring for the side effects of Zyprexa; and (2) for the

entry of a Rogers order, based in part on Dr. Czarnota-

Dolliver's opinion that if C.A. did not continue taking

antipsychotic medication C.A. would decompensate and require

psychiatric hospitalization in the future. See Guardianship of

A.R., 99 Mass. App. Ct. at 356-357 (even without considering

8 Those side effects mentioned by the judge include low
blood pressure, cessation of menses, changes in skin
pigmentation, eye problems, and toxicity to the heart, liver, or
bone marrow. The judge did hear testimony from Dr. Czarnota-
Dolliver that a different antipsychotic medication that C.A. had
taken previously had caused C.A. to suffer permanently from the
side effect of tardive dyskinesia. That medication was not
among those listed in the treatment plan.
12

contested exhibits, record contained sufficient evidence to

support limited guardianship).

2. Substituted judgment. C.A. argues that the judge erred

in determining pursuant to G. L. c. 190B, § 5-306A, that if C.A.

were not incapacitated, her substituted judgment would be to

accept the administration of antipsychotic medication. She

contends that the judge's substituted judgment determination was

"premature" because it was "predicated on hypotheticals" that

she would refuse Zyprexa or that it would no longer benefit her.

The relevant factors a judge must consider in making a

substituted judgment determination include "(1) a person's

expressed preferences; (2) h[er] religious convictions; (3) the

impact on [her] family; (4) the probability of adverse side

effects from treatment; (5) h[er] prognosis with treatment; and

(6) h[er] prognosis without treatment." Guardianship of A.R.,

99 Mass. App. Ct. at 358. See Guardianship of Roe, 383 Mass.

415, 444 (1981). Because the incapacitated person's

circumstances may change, a substituted judgment treatment order

authorizing the administration of antipsychotic medication must

contain a termination date and provisions for monitoring by the

guardian (or other suitable person) and periodic review at least

annually by a judge.9 See G. L. c. 190B, § 5-306A (b), (c). The

9 We note that the treatment plan at issue has expired. As
a result, C.A.'s appellate challenge to the substituted judgment
13

treatment plan should clearly describe the authorized treatment

and dosage ranges, any procedures or treatments that may be used

to counteract potential side effects, and reasonably foreseeable

alternative treatments.

In reviewing the judge's determination that C.A. would, if

not incapacitated, consent to treatment by antipsychotic

medication, "we must consider whether the facts on the record

support the proposition that [C.A.] [her]self would have made

the decision if [s]he were competent" (quotation and citation

omitted). Guardianship of Brandon, 424 Mass. 482, 488 (1997).

See G. L. c. 190B, § 1-109. We accept the judge's findings of

fact unless clearly erroneous, but review de novo the legal

conclusions to be drawn from those facts. See Guardianship of

Brandon, supra.

a. Zyprexa. Applying the factors set forth above, the

judge had ample basis to conclude that C.A., if not

incapacitated, would consent to taking the antipsychotic

medication Zyprexa daily as set forth in the proposed treatment

plan. C.A. had been voluntarily taking Zyprexa in its orally

administered form, Zyprexa Zydis, by ingesting it daily for at

least the past twelve years. DMH's filing of the petition was

component of the decree is now moot. See Guardianship of A.R.,
99 Mass. App. Ct. at 357. Because the issue of a treatment plan
is likely to reoccur in this case, we nevertheless consider
whether it was properly imposed. See id.
14

precipitated by C.A.'s inability to engage in a discussion with

Dr. Czarnota-Dolliver about the need to undergo blood tests to

monitor for the side effects of Zyprexa; shortly before trial,

C.A. refused to undergo those basic blood tests. C.A. testified

that she did not believe she was mentally ill and did not know

who had prescribed the medication she was taking; that

contrasted with evidence that she had been seeing Dr. Czarnota-

Dolliver for a dozen years during which her paranoid

schizophrenia was successfully treated with Zyprexa. C.A.

expressed no religious beliefs in opposition to being treated

with Zyprexa, and her family was not involved in her care and

did not oppose its use. Crediting Dr. Czarnota-Dolliver's

opinion, the judge concluded that C.A.'s prognosis with

antipsychotic medication was "good[,] with ability to remain

safely in a community setting," while her prognosis without that

medication was "poor[,] with decompensation and inpatient

hospitalization."

i. Absence of evidence that C.A. refused Zyprexa. Just

because C.A. had not yet refused to take Zyprexa did not

preclude the judge from exercising his discretion to approve the

treatment plan authorizing administration of Zyprexa in the

event that she did.10 In Guardianship of Linda, 401 Mass. at

10Dr. Czarnota-Dolliver testified without objection that
C.A. "never refused [Zyprexa] until recently. She was always
15

784-785, the respondent, like C.A., suffered from paranoid

schizophrenia, was living independently, and had been accepting

treatment with antipsychotic drugs but did not understand the

nature of the drugs. Anticipating that the respondent might

start refusing to take the drugs, DMH sought an order that would

permit forcible medication if she did so. See id. at 785.

Construing a prior statute, G. L. c. 201, § 6, repealed by St.

2008, c. 521, § 21, a Probate and Family Court judge denied

DMH's request to give the respondent's guardian Rogers authority

to require the respondent to accept antipsychotic drugs. See

Guardianship of Linda, supra at 784, 786. The Supreme Judicial

Court held that the judge acted within his discretion in ruling

that the hypothetical possibility that the respondent might in

the future refuse to take antipsychotic drugs was not a

sufficient basis to compel treatment with the drugs. See id. at

786-787.

More than two decades after Guardianship of Linda, the

Legislature adopted the Massachusetts Uniform Probate Code,

including the statutes at issue here, G. L. c. 190B,

§§ 5-101 (9), 5-306, and 5-306A. See St. 2008, c. 521, § 9,

compliant, but this week, I got a phone call that she started
refusing." The judge did not find whether he credited that
testimony, and in fact found that C.A. "is currently accepting
Zyprexa Zydis [thirty] mgs at bedtime." Because the judge did
not explicitly credit the evidence that C.A. had begun refusing
Zyprexa, we do not consider it.
16

eff. July 1, 2009. That was a "substantial revision" to

Massachusetts' "statutory guardianship law," more precisely

defining incapacitation and establishing "more elaborate

reporting requirements for guardians." Guardianship of D.C.,

479 Mass. 516, 522 (2018). One purpose underlying the adoption

of the new guardianship statutes was "the ability to create a

limited guardianship . . . intended to maximize the liberty and

autonomy of a person subject to guardianship." Guardianship of

B.V.G., 474 Mass. 315, 323 (2016). General Laws c. 190B,

§ 5-309 (a), furthers that purpose by requiring that the

guardian "shall exercise authority only as necessitated by the

incapacitated person's mental and adaptive limitations, and, to

the extent possible, shall encourage the incapacitated person to

participate in decisions, to act on h[er] own behalf, and to

develop or regain the capacity to manage personal affairs." If

the condition changes so that the incapacitated person becomes

"capable of exercising rights previously limited," the guardian

"shall immediately notify the court." G. L. c. 190B, § 5-309

(a).

In Guardianship of Linda, 401 Mass. at 787, the court noted

that "[i]t is possible that in another case the evidence could

be such that the judge might appropriately determine

prospectively that antipsychotic drugs might be administered

even if the ward refused the treatment." This is just such a
17

case. From the evidence of C.A.'s apparent confusion about her

medication, the judge could infer that C.A. was at risk of

stopping Zyprexa, which would result in the decompensation that

Dr. Czarnota-Dolliver predicted. The judge did not have to wait

for those events to occur before appointing the Rogers guardian

with authority to consent to treating C.A. with Zyprexa. That

is particularly so because G. L. c. 190B, § 5-309 (a), required

C.A.'s guardian to encourage C.A. to participate in decisions

and to develop the capacity to manage her own affairs, and

imposed on the guardian an affirmative duty to inform the judge

immediately if C.A. became capable of doing so. We conclude

that the judge did not abuse his discretion in approving the

Rogers treatment plan permitting the guardian, in the event that

C.A. refused Zyprexa, to consent on C.A.'s behalf to continuing

to take it. By giving the guardian that authority, the judge

furthered the statutory purpose of "encourag[ing] the

development of maximum self-reliance and independence of

[C.A.]," G. L. c. 190B, § 5-306 (a). See Guardianship of

B.V.G., 474 Mass. at 322-323. Permitting the guardian to

consent on C.A.'s behalf to Zyprexa, the medication she had been

taking for years, allowed C.A. to continue to live independently

rather than face the alternative, if she stopped taking it, that

she would decompensate and face the prospect of hospitalization.
18

ii. Administration of Zyprexa by intramuscular injection.

Nor do we discern an error of law or abuse of discretion in the

judge's ruling to permit administration of Zyprexa by the

alternative modality of intramuscular injection. In describing

the benefits and risks of the drug, Dr. Czarnota-Dolliver

referred to it as "Zyprexa," without specifying the orally

administered form, "Zyprexa Zydis," and from that the judge

could infer that essentially the same benefits and risks applied

to the drug taken either way.11 Implicit in the judge's

conclusion that C.A.'s substituted judgment would be to consent

to administration of Zyprexa orally was his conclusion that

C.A.'s substituted judgment would be to consent to Zyprexa by a

different modality, intramuscular injection. See Guardianship

of Brandon, 424 Mass. at 489 ("implicit" in judge's finding that

patient's substituted judgment would be to consent to treatment

with electronic shock device was conclusion that, if

effectiveness diminished, patient would consent to treatment

with stronger such device). Cf. Guardianship of L.H., 84 Mass.

App. Ct. 711, 716-717 (2014) (judge properly allowed

modification of treatment plan to permit administration of drug

by injection rather than orally). We do not read the

11C.A. does not identify how any of the criteria set forth
in Guardianship of A.R., 99 Mass. App. Ct. at 358, would apply
differently if Zyprexa were administered by intramuscular
injection rather than orally.
19

substituted judgment standard set forth in G. L. c. 190B,

§ 5-306A, to be so rigid as to require a separate substituted

judgment determination before a judge may authorize treatment

with the same drug by means of a different modality. See

Guardianship of Weedon, 409 Mass. 196, 202 (1991) ("it is

essential that the Probate Court maintain its flexibility and

its consequent ability to respond to the individual needs of

patients").

Dr. Czarnota-Dolliver explained that she did not prescribe

medications to be administered by injection on an outpatient

basis, so that alternative would be necessary only if C.A.

refused to take Zyprexa orally, decompensated, and was admitted

to a psychiatric hospital. Just because those events had not

yet occurred did not preclude the judge from exercising his

discretion to approve the treatment plan authorizing Zyprexa to

be administered by the alternative modality of intramuscular

injection. Permitting the guardian to consent to continuing

C.A.'s treatment with Zyprexa administered by intramuscular

injection would minimize the risk that she would decompensate,

and prevent a lapse in treatment. We discern no abuse of

discretion in the judge's interpreting G. L. c. 190B, § 5-306A,

to permit him to authorize the treatment plan including

administration of Zyprexa to C.A. by intramuscular injection.
20

b. Alternative antipsychotic medications. C.A. argues

that the judge erred in authorizing the treatment plan

permitting the guardian to consent to the administration of the

alternative antipsychotic medications, Invega and Latuda. We

conclude that because the judge did not hear evidence of those

medications' side effects or effectiveness, he did not have a

sufficient basis to determine that C.A.'s substituted judgment

would be to accept either of those medications.

As to those two alternative medications, Dr. Czarnota-

Dolliver testified that "if there's a problem with one

medication, then we try another," and "let's say if she were not

doing well on Zyprexa and then I gave her Invega and she would

develop some kind of allergic reaction, then we would have

another option [Latuda] to choose from." But the judge did not

hear evidence as to what side effects Invega or Latuda,

specifically, might cause, or those drugs' effectiveness. Thus,

as to Invega and Latuda, the judge did not perform the parts of

the substituted judgment analysis that required him to consider

"the probability of adverse side effects from treatment," and

C.A.'s "prognosis with treatment" by those drugs. Guardianship

of A.R., 99 Mass. App. Ct. at 358.

DMH argues that Probate and Family Court Standing Order 4-

11 (1) (c) (2011) provides DMH with the authority to offer

hypothetical alternative antipsychotic medications listed in the
21

treatment plan. This argument is unavailing, as that standing

order applies only to "uncontested" motions to extend existing

Rogers treatment plans. At issue here was an initial Rogers

petition, which C.A. did contest. In those circumstances, the

judge was required to conduct a substituted judgment

determination for each of the proposed alternative medications,

Invega and Latuda.

We vacate so much of the treatment plan order as authorized

the administration of Invega or Latuda as alternative

medications.

Conclusion. So much of the decree and order dated April

30, 2021, as authorizes the treatment of C.A. with Invega or

Latuda is vacated. In all other respects the decree and order

is affirmed.

So ordered.