Chapter 21
The incapacitated Client:
Personal Decision Making
Robert H. Weber, Esq.
Introduction
Most adults enjoy the freedom to exercise free choice when faced with important life decisions. They are free to consult with friends and relatives before they decide, but the ultimate selection of a plan of action remains with the individual. The law assumes that all adults possess the capacity to make decisions. Competent adults are even free to make irrational, sometimes strange, decisions without interference. Nevertheless, there are situations when a person’s decision making ability is questioned. These situations involve questions about an individual’s ability to control her property or money, or to make basic decisions about her personal affairs. Friends, family members, or persons or agencies acting as an “advocate” for the elderly person may identify a need to involve themselves in the elderly person’s life decisions because they believe the person is making a poor decision, or simply acting in a way that is contrary to the wishes of the friend or family member. Also, medical professionals are carefully examining their patient’s ability to participate in treatment decisions, and are seeking guardianships if they believe their patient cannot give informed consent. In addition, many people are beginning to seek legal means to control their future medical treatment when their competence may be questioned. They want to appoint family members or other friends to make medical treatment decisions for them, but they want to provide guidance for the surrogate decision-makers.
Medical decision-making is becoming increasingly complex as doctors are discovering new technologies and methods for keeping people alive. Many physicians wish to involve their patients in the medical process. Also doctors are increasingly aware of their liabilities for treating patients without obtaining informed consent. Harnish v. Children’s Hospital Medical Center, 387 Mass. 152 (1982) (A surgical patient cannot be treated without giving informed consent to the treatment. Furthermore, the physician has a duty to disclose all significant medical information to enable the patient to make an informed decision.) The law is developing different approaches to these issues, but the key questions remain. How do we decide that a person is competent to control his life, and if a person cannot make life decisions, what processes do we use to make these important decisions on his behalf? Also is there a way for a competent person to select an individual to make medical decisions on his behalf should the individual become incompetent in the future?
How do we decide that an elderly person cannot choose to leave a hospital and return to his home of fifty years instead of going to a nursing home? How do we decide that a mentally ill adult should risk a potentially dangerous treatment rather than remain in the state mental hospital? Who should decide to remove a feeding tube from a comatose person with little likelihood of regaining consciousness? How do we create a method to assist our families if they must make these decisions for incompetent family members?
In Massachusetts, the courts have consistently decided that all citizens have the right to make all personal decisions for themselves. This is a fundamental right that is not easily diminished. Guardianship of Roe, Mass. Adv. Sh. (1981) 981 (Mentally ill person living outside of a hospital cannot be forced to accept treatment with antipsychotic medication without a judicial finding of incompetence and a judicial substitute judgment decision.) Furthermore our courts have consistently held that only a judge, after a hearing, can decide that an individual is not competent to make medical decisions. Family members, friends or doctors do not have the legal authority to make these decisions. See Superintendent of Belchertown State School v. Saikewitz, 373 Mass. 728 (1977), Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) (Civilly committed mental patients have the same rights to participate in medical treatment decisions as non-hospitalized patients.)
Incompetent people cannot make appropriate decisions about life events. However the concept of incompetence is difficult to define and lacks meaning unless it is viewed in context. Legal competency is frequently confused with a clinical diagnosis of mental illness, mental retardation, Alzheimer’s Disease, and other conditions affecting mental functioning, yet not all people with such conditions are legally incompetent. For example, a seriously mentally ill person may be legally competent to make many decisions about her life, although she may have problems making decisions about her need for treatment for her mental illness.
There is no generally accepted measure for determining competency. Most clinical and legal experts agree that one must evaluate the decision-making capacity of the individual only after looking at the purpose for which the competency is being evaluated. Some experts suggest that the proper method for evaluating a person for competency is to explore the person’s ability to gather information; his ability to evaluate the information; and, his ability to make and express a decision. Herr, et al., Legal Rights and Mental Health Care, 32 (1983). Gutheil and Applebaum suggest three distinct elements of an individual’s decision making that should be reviewed in order to determine the person’s competency to make a decision. These include the individual’s awareness of the nature of the his situation, including his level of impairment if any exists; his factual understanding of the issue or issues with which he must deal; and his ability to manipulate the information rationally in order to reach a decision on these issues. Gutheil and Applebaum, Clinical Handbook of Psychiatry and the Law p. 217 (1982). Also of significance may be the ability of the individual to appreciate the foreseeable results of alternative courses of action.
All individuals who are asked to evaluate an individual’s competency, must develop an understanding of the nature of the decisions facing the individual, the individual’s capacity to gather and process information, his ability to communicate, his living situation, and the resources available to assist the person in making the decision. Furthermore, it is important to bear in mind that the law permits competent persons to make seemingly irrational decisions that may not be in their best interests. Lane v. Candura, 6 Mass. App. 377 (1978) (Elderly woman’s decision to refuse removal of gangrenous leg upheld as competent decision against medical advice.) In addition, a person may be competent to make some decisions and incompetent to make others. Guardianship of Bassett, Mass. App. Ct. Adv. Sh. 1986 (1979) (Incompetent person is competent to handle small amounts of money.)
There are a number of legal steps that may be taken to protect the interests of an incompetent person. All of them result in serious a diminution of the legal rights and freedoms of the incompetent person, therefore it is important to utilize the least restrictive means to protect the incompetent person. When choosing the proper legal approach the attorney must be aware of the type of decisions facing the individual, the individual’s degree of disability, the probable duration of the disability, and the resources available to help the individual make life decisions. This chapter will describe some of the most common legal approaches that provide alternative or supplemental assistance in decision making to protect the incompetent person.
GUARDIANSHIP
Guardianship is the legal procedure that is employed to protect individuals who lack the capacity to make or communicate life decisions, and, while competent did not execute documents appointing alternative decision-makers who could act on their behalf if they became incompetent. Guardianship is necessary for example when an incompetent person requires assistance in making medical decisions and that person has not properly designated an alternative decision maker by a appointing a health care agent under G.L.201D; or in situations when the incapacitated person cannot manage his financial or other personal affairs and has never appointed an alternative decision maker by executing a power of attorney. Although it is common practice for treating physicians to consult with family members or close friends of an incompetent person when deciding to provide medical care, family and friends cannot give consent to medical care or treatment. Our courts have consistently held “no other procedure is available other than guardianship for determining that a patient lacks the capacity to make treatment decisions” Rogers v. Commissioner of the Department of Mental Health, supra a
Guardianship requires the appointment of a family member, friend or other individual to protect the best interests of the mentally disabled individual. Today guardians are being asked to make extremely complex decisions on behalf of their wards. Many of these decisions require the guardian to consider troubling questions about the ward’s beliefs and desires regarding the quality of life and the viability of controversial courses of medical treatment. Furthermore, guardians are required to consider the apparently irrational desires of their wards as part of the decision making process. Finally, the role of the courts in the guardianship process is rapidly changing. Judges are increasingly required to take an active role in the supervision of the guardians they appoint. Decisions about extraordinary medical procedures require the judge to act as the decision-maker, leaving guardians little or no direct decision making responsibility.
Many physicians, family members and advocates believe that courts and judges are unwarranted intruders in the process. They believe that the personal decisions on behalf of disabled persons should be controlled as much as possible by the stated desires of the disabled person. Furthermore, they believe that family and friends who are intimately familiar with the disabled person are in a better position to make these difficult decisions. Thus, they are seeking alternative methods for providing decision-makers.
A guardianship proceeding is considered a benign procedure that will provide a disabled person with a guardian who will look out for his best interests. It is important to keep in mind, however, that the person under guardianship suffers a substantial deprivation of his basic civil liberties. Unless the probate court limits the powers of the guardian, the ward loses the right to make most important life decisions including: the right to consent to his own medical care, to contract, to vote, to manage his bank accounts, and other personal property, to spend his money, to associate with his friends, to choose to live in a nursing home, to sell his property, and many other rights that we generally take for granted. The standards and procedures found in the guardianship statutes and cases recognize this significant loss of liberty and provide a certain amount of due process protection for the alleged incompetent person.
Early in 2009 Massachusetts adopted the uniform probate code. The code made substantial changes to Massachusetts’ guardianship law. This chapter will provide a detailed review of the guardianship provisions in the new law. The new code provides significant protections for persons subject to guardianship and does away with some of the more onerous language of the current guardianship law.
SUMMARY OF IMPORTANT CHANGES TO THE GUARDIANSHIP STATUTE
The new law appears to separate the concept that we now know as “guardian of the person and the estate”. The new law has a provision for the appointment of a guardian who is responsible for all personal and medical decision-making. (Part 3) The new law has a separate section (Part 4) entitled Management of Property of Persons Under Disability and Minors. This section provides for the appointment of a conservator who is defined as “a person who is appointed by a court to manage the estate of her protected person…). This section has detailed and specific procedures for the appointment of a conservator and a detailed description of the cop of the conservators duties and responsibilities to manage the persons estate. It appears that the UPC requires separate petitions for the appointment of a guardian and the appointment of a conservator. Therefore, if one is seeking the appointment of what we used to call the guardian of the person and the estate, two separate petitions will have to be filed. It is possible that the Probate and Family Court will develop a single petition to be used in such cases, but that is not certain at this time. This chapter is entitled personal decision-making. Therefore, I will only address the guardianship sections of ARTICLE V.
The new law eliminates the label of “mentally ill person” for individuals who may require a guardian. The law provides for the appointment of a guardian for an “incapacitated person”. It defines an incapacitated person as 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. (G.L. c.190B § 5-101 (9))
This definition clearly includes the mentally ill person who would have been placed under guardianship under our prior statute, however it eliminates the stigmatizing label. The new definition addresses the person’s ability to function regardless of his diagnosis. This definition also makes it clear that a person cannot be placed under guardianship simply because of advanced age. The elder who requires a guardian under this statute must have a clinically diagnosed condition, such as dementia, that has an adverse affect on his ability to function.
The new statute requires the appointment of an attorney for any incapacitated person who is subject to a guardianship proceeding and who requests an attorney. An attorney must be provided to the individual even if he is indigent. The Commonwealth will pay for the attorney for an indigent respondent. The previous statute only provided for counsel for persons subject to guardianships if the guardian was seeking authority to commit the word to a psychiatric hospital or to administer extraordinary medical treatment. The new statute has no such limitation on the individual’s right to counsel. The person merely has to request that the court appoint counsel and counsel will be appointed regardless of the issues in the guardianship case. (G.L. c.190B § 5-106 (a)
The new statute eliminates the guardian’s ability to request authority to commit or place the ward in a locked psychiatric hospital. Such placements can now only occur under the provisions of the Massachusetts mental health commitment statutes found in general law chapter 123. The old guardianship statute, as refined by the Doe case, made it clear that a guardian could only admit the word to a locked psychiatric hospital, when the award objected to the admission, if the word met the civil commitment standards found in Chapter 123. Doe v. Doe, 377 Mass. 272 (1979). However, this standard did not apply in situations where the ward wanted to be admitted to the psychiatric facility as a voluntary patient, although the court still had to decide that the placement was in the ward’s best interest. I believe that the new statute’s prohibition against the admission of the incapacitated person to a locked psychiatric facility will require all such admissions to be handled pursuant to the involuntary sections of chapter 123. The admission will be initiated by an emergency mission pursuant to section 12 of chapter 123, followed by a commitment under section seven and eight of chapter 123.
This law does not change the authority of the healthcare agent to cause the admission of the healthcare principal to be admitted to a locked psychiatric hospital. Of course, in such situations if the person objects to the admission, she can simply void health care proxy.
The new statute requires the guardian to seek a specific finding by the court that admission to a nursing facility is in the incapacitated person’s best interest before the guardian seeks such admission. A nursing facility as defined by the statute. The definition clearly includes nursing homes, but it is not limited to nursing homes. Nursing facility is defined in the new law in a manner that I believe covers residential programs that provide a less restrictive level of residential care than nursing homes. The statute defines nursing facility as follows: (G.L. c.190B § 5-101 (15))
''Nursing facility", an institution or a distinct part of an institution which is primarily engaged in providing to residents:
(A) skilled nursing care and related services for residents who require medical or nursing care,
(B) rehabilitation services for the rehabilitation of injured, disabled or sick persons, or
(C) on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services above the level of room and board which can be made available to them only through institutional facilities, and is not primarily a mental health facility or mental retardation facility.
This definition clearly includes nursing homes and rehabilitation facilities licensed by the Department of Public Health. However, I believe the definition also describes certain units of assisted-living programs and rest homes that are not Department of Public Health licensed nursing homes. It includes secure Alzheimer’s units of assisted living programs where residents are not permitted to leave, and the program staff monitors or administers the resident’s medication. Family members or guardians expect a higher level of services than simple room and board when they make placements into these facilities. These programs are designed and operated to provide some level of medical care, even if it is nothing more than medication supervision. Furthermore, certain rest homes operated under contract to the Department of Mental Health provide more than simply room and board to the residents. The staff in these rest homes monitor patients medications and clearly provide “health-related care and services” to the residence.
The new statute incorporates additional reporting requirements for the guardian. While the old statute required the guardian to file an annual account describing the guardian’s management of the ward’s financial affairs, the new statute, in addition to an accounting, requires the guardian to file a written report on the condition of the incapacitated person. The report must include at a minimum the following: G.L. c.190B § 5-309 (b)
(1) the current mental, physical and social condition of the incapacitated person;
(2) the living arrangements for all addresses of the incapacitated person during the reporting period;
(3) the medical, educational, vocational and other services provided to the
incapacitated person and the guardian's opinion as to the adequacy of the incapacitated person's care;
(4) a summary of the guardian's visits with and activities on the incapacitated person's behalf and the extent to which the incapacitated person participated in decision-making;
(5) if the incapacitated person is institutionalized, whether the guardian considers the current treatment or habilitation plan to be in the incapacitated person's best interests;
(6) plans regarding future care; and
(7) a recommendation as to the need for continued guardianship and any
recommended changes in the scope of the guardianship.
This statute clarifies the relationship between a court appointed guardian and healthcare agent selected and appointed by the incapacitated person. The law clearly states that the decisions of a duly appointed health care agent take precedence over the decisions of the court-appointed guardian unless the court has authorized the guardian to revoke the health care proxy.
CLOSER LOOK AT NEW GUARDIANSHIP STATUTE
In this section I intend to describe in detail some of the significant parts of the new guardianship statute. This chapter is not intended as a comprehensive review of the entire statute, and thus is not intended as a detailed guide for anyone planning to initiate or defend a guardianship. I recommend that anyone actively involved or planning to represent any party in a guardianship case after July 1, 2009, read the entire statute and review the Probate Court forms and rules.
The new guardianship statute is found in Article V of the new chapter 190B of the General laws. Part 1 contains the general provisions and definitions applicable to all guardianship cases. Part 2 describes guardianships of minors. These guardianships are beyond the scope of this chapter and will not be covered. Part 3 describes the procedures to be followed whenever court is asked to appoint a guardian of an incapacitated person, and the duties and obligations of petitioners and guardians and the rights of incapacitated persons who are subject to such petitions. Part 4 describes the management of property of persons under disability and minors. This part is also beyond the scope of this chapter and will not be covered.
The definitions section added and changed some of the terms that we normally use in our probate proceedings. First, the term ward now only applies for a person for whom a guardian has been appointed solely because of his minority. The statute defines an adult who is subject to a guardianship as an “incapacitated person”. In addition, the definitions include a word called “letters”. A “letter” is a certificate of guardianship or certificate of conservatorship. I believe the probate court generally refers to these as decrees or court orders but the statute in multiple places refers to them as “letters”. The definitions section includes the definition of incapacitated person and the definition of nursing facility described in above. The definition of “health care proxy” includes a
durable power of attorney for health care executed prior to the enactment of chapter 201D and similar instruments for appointment of health care agents executed in accordance with the laws of other jurisdictions.
The statute contains a provision that allows the guardian of an incapacitated person to appoint a temporary agent to act on his behalf. (G.L. c.190B § 5-103) The temporary agent’s authority lasts for a period not to exceed 60 days, and includes any power that the guardian has regarding the care custody or property of the incapacitated person. There are formalities that must be followed before the delegation is made, and any such delegation of authority may be revoked or amended by the court. The delegation must be in writing, attested by two witnesses neither of whom is the temporary agent, and contain the written acceptance by the temporary agent. However, this section has no requirement that the agent file a bond. I do not know if the bond that is issued to the guardian will cover an agent selected by the guardian. I suggest that anyone appointed as a guardian of an estate check with the bonding agent before he delegates his authority to manage the incapacitated person’s property pursuant to this section.
Venue for guardianships of incapacitated persons is in the court where the incapacitated person resides at the time of the proceedings. However, if the person is admitted to a facility such as a hospital and nursing home or psychiatric facility at the time the petition is filed, venue is also in the county in which the facility is located.
The court must appoint counsel for an incapacitated person who is subject to a guardianship petition if the person or someone acting on his behalf requests appointment of counsel. In addition the court may determine at any time in the proceeding that the person’s interest are not adequately represented and on its own motion appoint an attorney to represent the person. If the incapacitated person has resources in his estate the attorney shall be compensated from his estate unless the court determines that the petitioner should pay for the attorney. If the incapacitated person is indigent, his counsel shall be compensated by the Commonwealth. The statute also makes clear the incapacitated person’s right to retain counsel of his own choice should he choose to do so.
The incapacitated person is entitled to be present at any hearing in person. The incapacitated person has the right to present evidence, present and cross-examine witnesses, and may request a closed hearing. This statute does not have the same provision for the appointment of an independent evaluator as the current statute does. The statute does permit the court to appoint a guardian ad litem to investigate, but it is not clear that this guardian ad litem will perform the same function as an independent evaluator. Clearly, an alleged incapacitated person with assets in his estate can hire his own independent evaluator. I believe that an indigent person who is subject to guardianship proceeding will have to rely on the provisions of general law chapter 261, and request the court for funds under that section to pay for an independent evaluator.
The new statute makes significant changes to the class of persons who are permitted to file guardianship petitions. G.L. c.190B § 5-309 (b) The petitioner is no longer required to be a parent or two friends of the incapacitated persons. The statute provides that any person interested in the welfare of the alleged incapacitated person may file a guardianship petition. The definition of “person” includes an organization. The statute further provides that the incapacitated person may file his own guardianship petition.
The statute requires the filing of a comprehensive guardianship petition that contains a significant amount of information regarding the petitioner and the person to be placed under guardianship. This is a major change from the current practice that simply requires allegations that the individual is unable to care for himself by reason of mental illness. The new petition requires the petitioner to list the name and age of the person alleged to be incapacitated and his address; the address of the place it is proposed that the person will reside if the appointment is made; and a brief description of the nature of the alleged incapacity. The petitioner must also state whether or not the person is alleged to be mentally retarded; if the petitioner is seeking court authority to consent to extraordinary medical treatment that requires a substituted judgment determination; or if the petitioner is seeking court authority to admit the alleged incapacitated person to a nursing facility. The petition must give the name and address of the proposed guardian, his relationship to the alleged incapacitated person and the reason why he should be selected guardian. The petition must state the name and address of the incapacitated person’s spouse and children, or if none, the person’s parents and brothers and sisters, or if none, the person’s heirs apparent or presumptive. The guardian petition that was adopted by the Probate and Family Court in the summer of 2008 is consistent with the requirements of the new statute. I have attached a copy of the petition to the end of this chapter.
The petition must also list the name and address of any caretaker for the alleged incapacitated person; the name and address of any representative payee; the name and address of any persons nominated as guardian by the alleged incapacitated person; the name and address of any agent designated under a durable power of attorney or health care proxy.
The petition must also state the reasons why a guardianship is necessary, the type of guardianship requested, and if a general guardianship is sought the reasons why a limited guardianship is not appropriate, and finally, if it is to be a limited guardianship, the powers to be granted to the limited guardian.
The statute also requires that the petitioner file a comprehensive medical certificate that is similar to the medical certificate that the probate court adopted in the summer of 2008. The certificate must be signed by a physician or a licensed psychologist. The medical certificate must be dated within 30 days of the filing of the petition; or contain a request by the petitioner to waive or postpone the filing of the medical certificate. This request must include an affidavit stating the reasons why it is impossible to obtain the medical certificate prior to the filing of the petition. The statute further requires an additional medical certificate with an examination that has taken place within 30 days prior to the court hearing on the guardianship petition. In the case of a person alleged to be mentally retarded the petitioner must also file a clinical team report dated within 180 days of the filing of the petition.
The statute provides normal provisions for notice to the alleged incapacitated person his relatives and others. The alleged incompetent person must be personally served. The statutes further provides that the person alleged to be incapacitated may not waive notice of the guardianship.
The statue requires the court to appoint a guardian in accordance with the incapacitated person’s most recent nomination in a power of attorney should one exists. If there is no such nomination the statue then provides a list of suitable persons who can serve as guardian in a priority order. The court is required to appoint a higher priority person over anyone else unless the court determines it is in the person’s best interests to pass over a higher priority person and appoint somebody of a lower priority. The priority list is as follows: first the spouse of the incapacitated person or person nominated by will of a deceased spouse or by other writing signed by the spouse; second is the parent of the incapacitated person; and after that it’s any person the court deems appropriate.
The court shall appoint a guardian so as to encourage the development of maximum self-reliance and independence of the incapacitated person. The court may make appointive orders only to the extent necessitated by the incapacitated person’s limitations. The court may appoint a guardian after hearing if it finds a qualified person seeks appointment as guardian; proper notices have been given; a current medical certificate has been filed; the person for whom the appointment of a guardian is sought is an incapacitated person as defined by the statute; the appointment is necessary or desirable as a means of providing continuing care and supervision; and the person’s needs cannot be met by less restrictive means, including the use of appropriate technologies. It is not clear what the phrase appropriate technologies means. However, I assume that it may include protection for persons who have the cognitive ability to communicate and have physical incapacities to communicate that can be overcome by technological devices.
The court at the time of the appointment or later on its own motion or on the motion of the incapacitated person or any other interested party may limit the powers of a guardian and thereby create a limited guardianship. The court may also remove a limitation or modify it at any time.
The statute contains a section entitled substituted judgment. (G.L. c.190B § 5-306A) This section describes detailed procedures that must be followed before the court authorizes any treatment that requires a substituted judgment determination. Most of these procedures are consistent with the Rogers procedures that are currently followed by our program in family courts.
The statute does not provide in this section or in the definitions section a clear definition of the phrase “substituted judgment”. However, I believe we can look to the judicial history in Massachusetts to define those medical decisions that require a substituted judgment decision.
Substituted Judgment procedures are required in all cases involving the administration or withholding of extraordinary medical treatment. Such treatment may include electro-shock therapy, psycho-surgery, sterilization, amputation, or the withholding of life prolonging treatment. In a series of decisions from Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977), to Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) and Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417 (1986) the Supreme Judicial Court has established guidelines for identifying medical treatment that it considers extraordinary. The court has also described the procedures that apply to such cases.
Today many of the decisions guardians are asked to make involve complex ethical and medical issues. These issues may involve the removal of an unconscious person from life sustaining equipment, the administration of experimental, possibly dangerous drugs, or invasive, irreversible surgery. The courts in many states have struggled with questions about the rights of incompetent persons to make these decisions, the role of the courts in the decision making process, the proper person to act as a substitute decision-maker, and the standards that must be applied by the substitute decision-maker.
In Massachusetts the first case addressing these issues involved a sixty-seven year old retarded man who had been a life-time resident of a state school for persons with mental retardation. The Department of Mental Health discovered that Mr. Saikewicz was suffering from leukemia. The only possible treatment for his condition was the administration of chemotherapy. The treatment was difficult to administer particularly under the circumstances of the particular case, since Mr. Saikewicz’s lack of comprehension of the treatment and inability to cooperate would necessitate his physical restraint. The treatment would also produce a number of serious side effects. At best, the treatment would extend Mr. Saikewicz’s life a brief period of time. The Department felt it that it did not have the authority withhold or administer the treatment, therefore it filed a petition in the probate court requesting the appointment of a guardian who could make the decision. The Department assumed that the guardian would have the inherent power to authorize the administration or the withholding of the chemotherapy.
The probate court asked the SJC to determine its authority to order the withholding of certain medical treatment. The trial court also asked the SJC to determine the proper course of action based on the facts of the case. The SJC decided that the probate court had the authority to act; furthermore, it agreed that Mr. Saikewicz was incompetent to make the treatment decision. However it decided that the difficult decision whether or not to administer the life prolonging medical treatment must not be delegated to a guardian. The court held that such a decision could only be made by the Probate Judge after determining what the incompetent person would have decided if he were competent. The court further held that the question before the probate court did not require a medical decision; rather the role of the probate court was to determine ‘the incompetent person’s actual interests and preferences,’ recognizing that “. . . the substantive rights of the competent and the incompetent person are the same in regard to the right to decline potentially life prolonging treatment.’ Saikewicz, supra. Although this intrusion by the judiciary into the traditional medical decision making process was unprecedented, the court stated unequivocally that decisions about the administration or withholding of medical treatment for incompetent persons must not be left to the medical profession.
We do not view the judicial resolution of this most difficult and awesome question—whether potentially life prolonging treatment should be withheld from a person incapable of making his own decision—as constituting a “gratuitous encroachment” on the domain of medical expertise. Rather, such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created. Achieving this ideal is our responsibility and that of the lower court, and is not to be entrusted to any other group purporting to represent the “morality and conscience of our society,” no matter how highly motivated or impressively constituted. Saikewicz, supra
Finally, the SJC ruled that the standard to be applied by the probate court judge when making the decision was the substituted judgment standard. This standard requires the probate Judge to determine what the incompetent person would have decided if he were competent.
In 1981, the SJC was asked to decide the authority of a probate court to appoint a guardian with the authority to consent to the administration of antipsychotic medication to his non-hospitalized ward. The Court held that antipsychotic medication was such an intrusive form of treatment that the decision to consent to its application could not be delegated to a guardian. Such a decision required a judicial decision-maker to make a substituted judgment determination. Guardianship of Roe, Mass. Adv. Sh. (1981) 981.
The Roe case was the last in a series of cases that were decided after Saikewicz. In each case, doctors, attorneys and judges were attempting to identify those extraordinary medical treatment decisions that could not be delegated to guardians and must be reserved for probate judges. See Matter of Spring, 380 Mass. 629 (1980); Custody of a Minor, 385 Mass. 697 (1982); Matter of Moe, 385 Mass. 555 (1982). The SJC in Roe described the test to differentiate those treatment decisions that may be delegated to guardians from those that must be made by the probate court judge. The court listed a number of factors that must be considered. These included the intrusiveness of the proposed treatment, the possibility of adverse side effects, the absence of an emergency, the likelihood of any conflicting interests among the parties to the petition, and the nature and extent of prior judicial involvement.
It is clear from past decisions that extraordinary treatment includes electro-convulsive therapy, psycho-surgery, amputation, sterilization, the withholding of life-sustaining treatment (including mechanically-administered hydration and nutrition) and treatment with antipsychotic medication. Antipsychotic medication includes “[m]edications such as Thorazine, Mellaril, Prolixin, and Haldol that are used in treating psychosis, particularly schizophrenia.” Rogers, supra at 489 fn 3. These medications do not include most antidepressants, anti-anxiety medications and lithium.
Those courts that have looked at the problem of defining the appropriate scope of court involvement in medical treatment have been influenced primarily by the intrusiveness of the treatment and degree of severity of the possible side effects. Sterilization and amputation are extraordinary because they are irreversible. Treatment with antipsychotic medication is considered extraordinary because it has the potential for causing a serious and sometimes irreversible side effect known as tardive dyskinesia, and may constitute an invasion into private and constitutionally protected areas of personal thought. Sterilization similarly impacts constitutionally protected domains. Many other forms of surgery and medications may be considered to be risky or invasive and may require a judicial decision-maker. The factors described above must be applied to each situation.
All medical treatments offered to an incompetent person require the informed consent of a substitute decision-maker. Extraordinary medical treatment requires a judicial decision-maker, whereas a guardian makes decisions regarding customary and usual medical treatment.
When situations require a judicial decision-maker the judge must identify the choice the incompetent person would make if he were competent, taking into account all of the appropriate factors. In some situations the decision may not necessarily one that is in the incompetent persons best medical interest. This “substitute judgment decision” must encompass the following factors: the incompetent person’s expressed preferences regarding the treatment; the person’s religious beliefs, to the extent that they may be a factor for him in making medical treatment decisions; the impact of the decision to accept or refuse the treatment on the person’s family; the probability of adverse side effects and the degree of severity of the side effects; the prognosis without the proposed treatment; and, the prognosis with the treatment. After considering all of these factors, and any other evidence he deems relevant, the judge will authorize or refuse to authorize the administration or withholding of the extraordinary medical treatment. In acting favorably upon a petition, the judge will ordinarily issue or approve a written substitute judgment treatment plan.
The guardian’s role in substitute judgment cases is to monitor the treatment plan. Although the judge has the decision making responsibility, at least with respect to any extraordinary medical treatment, the guardian is the person with the obligation to consult with the treating professionals and the patient. If there is any need to modify the treatment plan, the guardian should alert the judge and request the modification. The court may appoint a suitable person to serve as a monitor if the guardian is not suitable or available to monitor the medication. Each order making a substituted judgment determination shall provide for a periodic review of the treatment plan. Said review shall occur at least once a year. Furthermore, each substitute judgment treatment order shall provide an expiration date after which no such treatment shall occur unless extended by the court.
This section on substitute judgment has a paragraph relating to the psychotherapist patient or social work patient privilege. (G.L. c.190B § 5-306A (d) This section states that any privilege relating to confidential communication shall not prohibit the filing of reports or affidavits or giving of testimony pursuant to this part for the purposes of obtaining treatment of a person alleged to be incapacitated. This section states that the privilege is waived only after the alleged incapacitated person has been informed of the privilege prior to making the communication, that the communication may be used in the hearing, and has waived the privilege. This means that the psychotherapists or social worker patient privilege remains in effect unless the alleged incompetent person has waived the privilege. Of course, this may lead to the situation where the psychotherapist concludes that his patient can waive the privilege and at the same time he is incompetent to make treatment decisions. This waiver of the privilege appears to be limited to substitute judgment decisions. However, it could be read to include all treatment for the alleged incompetent person. It appears from the language of this section, and from its placement within the statute. that this waiver of the privilege does not include a waiver of the privilege for the purposes of obtaining the guardianship. In such cases the privilege, I believe, the privilege remains in effect. Furthermore, another issue that is raised by this section is the question of whether or not there is a continuing waiver of the privilege. Does the psychotherapist have a duty to continually and regularly remind her patient of the psychotherapist’s intention to share privileged information in order to obtain treatment, or does a simple request to waive the privilege at an intake interview waive the privilege for all time. This situation may occur when a patient initiates treatment, a psychotherapist obtains a waiver, and the patient continues to receive treatment from the psychotherapist over a lengthy period of time. The psychotherapist could be a treating professional who has a long-term relationship with the patient. I am not certain that a waiver that is obtained at the initiation of treatment would continue throughout treatment without being re-enforced throughout the treatment. I would argue that the patient’s treatment changes his relationship with the therapist over time, and the personal information he discloses to the therapist may change over time. The burden should not be on the patient to remember that he granted a waiver at the initiation of treatment and that everything he is telling the therapists could be released in the patients “best interests”.
Temporary Guardianship
The new statute has a provision for emergency orders and the appointment of temporary guardians. (G.L. c.190B § 5-308) The standards and procedures outlined in this section do not represent a major departure from the current law.
The court may appoint a temporary guardian if a petition for the appointment of a guardian is pending, if the incapacitated person has no guardian or other person to act, and the court finds that following the procedures of the guardianship statue will likely result in immediate and substantial harm to the health safety or welfare of the alleged incapacitated person. The temporary guardianship is granted by motion. The motion has to describe the circumstances that require the appointment; the particular harm sought to be avoided by the appointment; and the actions that must be taken by the temporary guardian to avoid the occurrence of the harm. The motion must be accompanied by an affidavit containing the facts supporting the basis for the motion and the orders being sought by the temporary guardian. Any appointment of a temporary guardian is approved for up to 90 days, although upon a finding of extraordinary circumstances the court may order the appointment for a longer period to a date certain.
The petitioner is required to give seven days written notice in hand to the alleged incapacitated person prior to any hearing for the appointment of a temporary guardian. However, if the court determines that an emergency situation exists that requires the immediate appointment of a temporary guardian it may shorten the notice requirements in whole or in part. The court may grant the motion in such circumstances and order post-appointment notice to be given to the alleged incompetent person and all those named in the petition for guardianship. This post appointment notice must state that any such person may move to vacate the order of the court or request the court to make any other appropriate action on the matter. The petitioner must file a certificate documenting the post-appointment service within seven days of the appointment. The court may on its own vacate the temporary guardianship order if the petitioner fails to file the certificate. In addition, any hearing on the motion to vacate the order will be treated as a de novo matter and the court must schedule it as soon as possible.
The statute clearly states that the appointment of a temporary guardian with or without notice is not a final determination of the persons in capacity. I believe that this means that the appointment of a temporary guardianship under these circumstances is of no evidentiary value at a hearing on the permanent guardianship. Further, I interpret this to mean that the permanent guardianship hearing is a de novo hearing and a petitioner continues to have the burden to prove the need for guardian and cannot use the appointment of a temporary guardian as evidence to support his case.
The new statute has a very specific section that enumerates the powers duties rights and immunities of the guardian. In addition, the statute significantly increases the guardians reporting requirements. The guardian is now required to submit at least annually a written report that addresses not only a financial accounting of the words assets, but a detail report of the physical and mental condition of the incapacitated person that includes a description of his living arrangements and activities. These two sections are relatively brief and important enough that I have quoted them in their entirety below.
Section 5-309. [Powers, Duties, Rights and Immunities of Guardians, Limitations.]
(a) Except as limited pursuant to section 5-306(c), a guardian of an incapacitated person shall make decisions regarding the incapacitated person's support, care, education, health and welfare, but a guardian is not personally liable for the incapacitated person's expenses and is not liable to third persons by reason of that relationship for acts of the incapacitated person. A 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 his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, to the extent known, shall consider the expressed desires and personal values of the incapacitated person when making decisions, and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence. A guardian shall immediately notify the court if the incapacitated person's condition has changed so that he or she is capable of exercising rights previously limited. In addition, a guardian has the duties, powers and responsibilities of a guardian of a minor as described in section 5-209(b), (c), (d) and (e)
(b) A guardian shall report in writing the condition of the incapacitated person and account for funds and other assets subject to the guardian's possession or control within 60 days following appointment, at least annually thereafter, and when otherwise ordered by the court. A report shall briefly state:
(1) the current mental, physical and social condition of the incapacitated person;
(2) the living arrangements for all addresses of the incapacitated person during the reporting period;
(3) the medical, educational, vocational and other services provided to the incapacitated person and the guardian's opinion as to the adequacy of the incapacitated person's care;
(4) a summary of the guardian's visits with and activities on the incapacitated person's behalf and the extent to which the incapacitated person participated in decision- making;
(5) if the incapacitated person is institutionalized, whether the guardian considers the current treatment or habilitation plan to be in the incapacitated person's best interests;
(6) plans regarding future care; and
(7) a recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.
(c) The court shall establish a system for monitoring guardianships, including the filing and review of annual reports.
(d) The court may appoint a guardian ad litem pursuant to section 1-404 to review a report, to interview the incapacitated person or guardian, and to make such other investigation as the court may direct.
( e) A guardian, without authorization of the court, may not revoke a health care proxy of which the incapacitated person is the principal. If a health care proxy is in effect, absent an order of the court to the contrary, a health-care decision of the agent takes precedence over that of a guardian.
(f) No guardian shall be given the authority under this chapter to admit or commit an incapacitated person to a mental health facility or a mental retardation facility as defined in the regulations of the department of mental health.
(g) No guardian shall have the authority admit an incapacitated person to a nursing facility except upon a specific finding by the court that such admission is in the incapacitated person's best interest.
SELECTION OF A GUARDIAN
The decision to place a person under guardianship is a difficult one that is usually carefully considered before it is initiated. However, the selection of the person to serve as a guardian is not always so carefully planned. Frequently the petitioner is parent or adult child or close friend or relative of an incompetent person. These petitioners generally nominate a person they believe is suitable to act as guardian. In the majority of cases the petitioners ask the court to appoint themselves as guardians, although there is no legal requirement that the petitioner must be nominated as the guardian. In the vast majority of cases the petitioner is a caring person familiar with the incompetent person, and the guardianship simply serves to legitimize the petitioner’s relationship with the incompetent individual. Furthermore, as family members they may be high on the priority list of persons who should be appointed guardian described in the statute.
However, there are circumstances where petitioner is not suitable to serve as guardian. The proposed guardian may have unresolved conflicts with family members of the incompetent person, or may have conflicts with the incompetent person making it impossible for the guardian to act in the ward’s best interest. The proposed guardian may be otherwise incapable of making decisions in the ward’s best interest for a variety of reasons that vary with each individual case.
Guardianship may produce a significant breach in family relationships. Interfamily tensions may be heightened if the guardian is a family member. The parent seeking guardianship of a mentally ill young adult may be perceived by his son as an over controlling parent who is trying to impose his values on his child. The adult child seeking guardianship of a mentally ill or demented parent may be perceived as a scheming child who is more interested in safeguarding her inheritance than protecting her parent. Siblings may disagree about the need for a guardian or they may agree about the need for a guardian, but dispute the choice of a guardian. Siblings may bring all manner of sibling rivalries into the selection of a guardian for an incapacitated parent. Family disputes regarding the choice of a family member to serve as guardian often lead to expensive and emotionally explosive litigation in the Probate and Family Court.
The law gives little guidance regarding the standards judges should follow when selecting a guardian. Judges have broad discretion in choosing a guardian who can protect the best interests of the incompetent person. Judges generally appoint the individual nominated in the petition unless there is an objection raised by any of the parties. The ward and each of his heirs at law are entitled to notice of the guardianship and they each have the right to raise an objection to need for a guardian or, if they agree to the need for a guardian, to the selection of the proposed guardian.
The ward’s nomination of a future guardian written into durable power of attorney is binding, and the judge must appoint the designated person, unless there is good cause shown that the person selected is unsuitable to serve as guardian. Guardianship of James A. Smith, 43 Mass. App. Ct. 493 (1997). In the absence of a power of attorney, the court may review any relevant evidence when choosing a guardian. The court may consider the expressed wishes of the ward as evidence of the ward’s best interest. The court may look to the ward’s current capacity to indicate her desires, or it may look to prior statements or actions indicating the ward’s preferences regarding a guardian. The court may consider a family member’s history of caring for the ward, however the court is not required to select the family member who spent the most time with the ward, or who spent the most money on the ward, or who visited the ward the most. The judge must choose the individual who can protect the ward’s best interests. This means the court must select a guardian who can insure that the ward’s medical, financial and personal needs are met. It also means that the judge must select an individual who can maintain and encourage the ward’s relationships within her community of family members and social acquaintances. Judges will not appoint a family member who has alienated other members of the family in a manner that impedes their relationships with the ward.
Most judges will appoint an objective third party in cases where the family conflict presents itself in court. The court will select an attorney or mental health professional to act as guardian. The ward’s assets will be used to pay the fees of the guardian. There are a few social service agencies that provide guardianship services in some parts of the state. These programs were created to serve as guardians for incompetent persons who have no one to act as their guardian, however the agencies occasionally accept appointments to serve as a guardian in contested cases.
POWERS OF THE GUARDIAN
Families of mentally ill persons are frequently encouraged to file guardianship petitions in an effort to force treatment on their mentally ill relative. Although a guardian has the legal authority to consent to treatment, it is important for family members to understand the practical limitations of the powers of the guardian before they begin the guardianship process.
A general guardian appointed by the Probate and Family court has the legal authority to make all personal decisions on the ward’s behalf and to control all of the ward’s real and personal property.
a guardian of an incapacitated
person shall make decisions regarding the incapacitated person's support, care, education,
health and welfare… Section 5-309
However, the law provides little guidance for the guardian regarding his duties and responsibilities when caring for the incapacitated person of the ward if the incapacitated person is actively refusing to follow the guardian’s directions. This situation occurs most frequently with adult mentally ill incapacitated persons who refuse to take their prescribed medication or cooperate with a residential placement.
The guardianship may be limited. In some cases, the guardian may have authority to manage some, but not all of the pesron’s affairs. The court may mold these “limited” guardianships to meet the specific needs of the incapacitated persons.. A limited guardianship will include specific written limitations on the guardian’s authority in the decree signed by the judge. However, most courts grant full guardianships over the person of the ward and do not provide any limitations on the guardian’s powers. The new statute encourages the use of limited guardianships. However limited guardianships, in my experience, are rarely granted.
The guardian is responsible for making all decisions regarding the incapacitated person’s medical care, including choosing the treating physician, receiving medical information from the physician, choosing the location of the treatment, and giving or withholding consent to treatment; making living arrangements for the ward, including the location and type of residence and the identity of any roommates; making decisions about the incapacitated person’s employment or education; controlling the ward’s choice of friends and companions; etc. The guardian will make these decisions on the incapacitated person’s behalf by maintaining communication with the person and the individuals involved with the his care and treatment. However, there may be significant limitations on the guardian’s capacity to compel the incapacitated person’s compliance with his decisions.
The guardian can usually rely on the treatment team to carry out his decisions if the incapacitated person resides in a hospital, nursing home, group home or other supervised environment. However, there may be problems if the person lives on his own in the community, or in a loosely supervised community setting. The guardian can instruct the to take certain medicine, or live in a specified location or avoid certain individuals in the community, but the guardian has relatively little powers of enforcement.
The guardian can attempt to use his personal relationship with the incapacitated person to persuade him comply. This effort may be more successful if the guardian can remind the person of past painful events that occurred when the he failed to comply with the guardian’s directives.
There are a few additional tactics guardians may attempt to force a recalcitrant incapacitated person to accept treatment or comply with the guardian’s decisions. The guardian may force the person’s compliance in situations where the guardian controls the person’s funds, or has a good working relationship with a third party who controls the funds such as a trustee. The guardian can withhold funds or make the purchase of items the incapacitated person wants contingent on his compliance with treatment. The guardian can refuse to pay rent on a residence the guardian feels is not suitable for the incapacitated person. In some cases, the guardian can use the funds to reward good behavior. When persuasion or the control of funds cannot force compliance, the guardian may turn other figures in the person’s life who have the authority to force compliance.
Family members usually make every effort to help their mentally ill relatives avoid the criminal process. However, criminal prosecution may be the only way to force treatment on an unwilling patient. Criminal justice issues are not unusual for persons under guardianship who are not compliant with treatment. It may be in the ward’s best interest for the family to bring charges on an incident involving minor misdemeanor before a situation escalates to a felony.
Guardians may work with criminal defense attorneys or probation officers in an effort to force the incapacitated person to comply with treatment in cases where the person is charged with a crime. The guardian can encourage the incapacitated persons to accept terms of probation that require treatment compliance and work with the probation officer to monitor compliance. The guardian cannot force the incapacitated person to accept terms of probation and the guardian cannot enter a plea agreement on behalf of a person who is not competent to stand trial. Commonwealth v. DelVerde, 398 Mass. 288 (1986) However, the guardian can talk to the prosecutor and probation officer about a plea agree that requires the incapacitated person to accept treatment, and encourage the person to accept the plea instead of a jail sentence. The final decision is the incapacitated person’s; the guardian can encourage him to accept treatment in lie of jail.
There are other methods of coercive treatment that may work in specific cases. A incapacitated person’s who is involved in custody cases, either with DCF or in a divorce or paternity matter, may have his access to his children contingent on treatment compliance. Guardians have the authority to enter into such agreements and give permission for the incapacitated person’s physician to disclose compliance or noncompliance to the custodial parent or agency. A guardian may inform the person that he will keep the person’s landlord informed about the treatment in an effort to avoid an eviction caused by the person’s behavior.
Finally a guardianship may provide some benefit to the incapacitated persons in cases where compliance is an issue. In addition, the guardian has the right to obtain information from the person’s physician in order to monitor the person’s compliance with treatment. This may permit the guardian to avert a crisis by seeking treatment before the incapacitated person completely deteriorates and requires emergency hospitalization. Also, the guardian can consent to treatment for a hospitalized ward from the moment the person is placed in the hospital. Thus avoiding a period of untreated hospitalization while the hospital or family is seeking court authority to administer treatment.
ALTERNATIVES TO GUARDIANSHIP
Guardianship is not the exclusive method for assisting incompetent persons to handle their affairs. There are many alternate legal devices that protect the person’s property and are less invasive of individual rights. These include revocable and irrevocable trusts, durable powers of attorney, conservatorships and health care proxies. These alternatives permit a competent individual to execute a legal document designating a family member or a trusted friend to make decisions on his behalf, should he become incompetent in the future. Many attorneys are utilizing this type of planning to assist their clients plan for future personal decision making.
The two most commonly utilized legal procedures for designating future decision-makers in Massachusetts are the durable power of attorney and the health care proxy. Many other states permit competent persons to sign a living will. In Massachusetts, living wills may be helpful in determining an individual’s intent in the context of a determination of substitute judgment, but they are not legally enforceable in themselves.
The Massachusetts legislature decided that the health care proxy is the appropriate legal document for designating alternative medical decision-makers. The health care proxy was created by the legislature in December 1990, and is found in G.L. c. 201D. A living will provides instructions about an individual’s desire to receive or refuse treatment if he is in a coma or otherwise unable to communicate and he requires life saving treatment such as artificial feeding. A health care proxy is a legal document that a competent individual may execute designating a health care “agent” to make all medical decisions on his behalf if he becomes incompetent to make medical decisions. The health care agent is permitted to make all health care decisions, including decisions about life sustaining treatment. Thus the health care proxy provides for broad based future medical decision making and in many ways is preferable planning document. A carefully drafted health care proxy may also provide language and instructions that are similar to a living will by providing appropriate instructions about the individuals personal desires and beliefs regarding life sustaining treatment.
Any competent adult in Massachusetts may execute a health care proxy designating another competent adult to make future health care decisions. The individual executing the document is the health care principal and the future decision-maker is his health care agent. The statute provides specific formalities for drafting and executing the document. The health care proxy should be shared with the individual’s treating physician and other health care providers. The proxy is utilized when the treating physician determines that the principal is not competent to make health care decisions and turns to the agent for permission to treat. The proxy may be revoked by the principal and the principal may refuse treatment authorized by the agent.
The health care proxy may provide for all medical decisions or it may be specifically limited by the principal. In the absences of specific language the agent must decide:
(i) in accordance with the agent’s assessment of the principal’s wishes, including the principal’s religious and moral beliefs, or (ii) if the principal’s wishes are unknown, in accordance with the agent’s assessment of the principal’s best interest. G.L. c. 201D § 5.
The principal may choose to include specific limiting language in the proxy or he may choose to provide written instructions to the agent outside of the document. These serve to give the agent an indication of the principals desires, but the are not binding on the agent.
The health care proxy statute is very new and there are some questions raised by the statute that remain unanswered. Many attorneys and hospital personnel are not certain that the law permits the health care agent to consent to antipsychotic medication or psychiatric hospitalization in the absence of specific authority from a probate court as required by the judicial decisions described above. Some hospitals will accept a health care agent’s consent to some treatment and some will not. There is no uniform opinion on this issue. Many hospitals require a health care agent to seek a guardianship and specific court authority to consent to the administration of antipsychotic medication or psychiatric hospitalization. In addition, many mentally ill patients will exercise theirs legal rights and refuse psychiatric treatment that is authorized by the agent.
I believe that a carefully drafted document is the best way to avoid any problems about the agent’s authority to consent to extraordinary medical treatment. If the individual has a history of treatment for mental illness and has specific desires about the use of certain antipsychotic medications or electro-convulsive therapy, for example, he should clearly state his desires in the health care proxy. If the individual has strong feelings about his right to die without intrusive medical intervention, he should state those feelings as well. In this situation the individual should clearly state the future condition that will trigger the withholding of treatment. He should make provisions for situations when he might be terminally ill and situations when he may not be terminally ill, but he has permanently lost all cognitive functions. In addition, the individual should clearly describe his wishes with regard to all possible future treatments. It is most important to have separate provisions indicating his desires regarding the withholding of traditional medical interventions and food and water. I have included a sample health care proxy form that includes specific language for many of these issues. Such language is not necessary in all circumstances -- some practitioners prefer not to include living will language in the health care proxy at all, but instead rely on the general grant of authority alone and thereby lessen the risk of conflict over interpretation of the instrument. But attorneys may want to consider including these provisions in appropriate cases.
A durable power of attorney is authorized by G.L. c. 190B §§ 5-501 - 507. It is a power of attorney that remains in effect despite the disability or incapacity of the principle. A durable power of attorney can also be written as a “springing power,” whereby it first becomes effective upon the disability or incapacity of the principle, and then remains in effect. Although making decisions about financial affairs of the incapacitated person is the traditional purpose of the durable power of attorney, in the past many attorneys advised their clients to execute durable powers that authorized personal decision-making as well. Despite the absence of statutory authority or case law in support of the viability of such extensions of the basic statute, documents were drafted that permitted the attorney-in-fact to place the principle in a nursing home or a hospital, to make medical decisions and in some circumstances to refuse the application of life-sustaining medical procedures. The health care proxy law neither validates nor invalidates such so-called medical durable powers of attorney that were signed before December 18, 1990. Given remaining questions about the validity of any such powers of attorney, it would be advisable, in any situations where it is still feasible, to have clients re-execute their instruments as health care proxies.
The present Massachusetts law clearly supports extensive judicial involvement in most personal decision making on behalf of incompetent persons. Health care proxies will reduce the amount of judicial involvement, but many situations will still require judicial decision making. Massachusetts’s law has a strong preference for supporting the clearly held beliefs of competent individuals. Therefore it is very important for competent persons to clearly state their desires with regard to future medical treatment. Their family and friends may not make the decision, but they will be able to convince the judge to make the correct decision.
SAMPLE HEALTH CARE PROXY
MASSACHUSETTS HEALTH CARE PROXY
TO MY FAMILY, DOCTORS, AND ALL THOSE CONCERNED
WITH MY CARE:
1. Appointment
I, ______________ (the principal), residing at ______________ , Massachusetts, being a competent adult at least eighteen years of age or older, of sound mind and under no constraint or undue influence, hereby appoint the following person to be my HEALTH CARE AGENT under the terms of this document:
Name: ______________
Address: ______________ , Massachusetts
Telephone: ______________
In so doing, I intend to create a Health Care Proxy according to Chapter 201D of the General Laws of Massachusetts. In making this appointment, I am giving my Health Care Agent the authority to make any and all health care decisions on my behalf, including decisions about life-sustaining treatment, subject to any limitations I state in this document, in the event that I should at some future time become incapable of making health care decisions for myself.
2. Alternate Appointment
I hereby appoint the following person to serve as my Health Care Agent in the event that my original Health Care Agent is not available, willing or competent to serve and is not expected to become available, willing or competent to make a timely decision given my medical circumstances, or in the event that my original Health Care Agent is disqualified from acting on my behalf.
Name: ______________
Address: ______________
Telephone: ______________
3. Powers Given to Health Care Agent
A. I give my Health Care Agent full authority to make any and all health care decision for me including decisions about life-sustaining treatment, subject only to the limitations I state below.
B. My Health Care Agent shall have authority to act on my behalf only if, when and for so long as a determination has been made that I lack the capacity to make or to communicate health care decision for myself. This determination shall be made in writing by my attending physician according to accepted standards of medical judgment and the requirements of Chapter 201D of the General Laws of Massachusetts.
C. The Authority of my Health Care Agent shall cease if my attending physician determines that I have regained capacity. The authority of my Health Care Agent shall recommence if I subsequently lose capacity and consent for treatment is required.
D. I shall be notified of any determination that I lack capacity to make or communicate health care decisions where there is any indication that I am able to comprehend this notice.
E. My Health Care Agent shall make health care decisions for me only after consultation with my health care providers and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects.
F. My Health Care Agent shall make health care decisions for me only in accordance with my Health Care Agent’s assessment of my wishes, including my religious and moral beliefs, or, if my wishes are unknown, in accordance with my Health Care Agent’s assessment of my best interests.
G. My Health Care Agent shall have the right to receive any and all medical information necessary to make informed decisions regarding my health care, including any and all confidential medical information that I would be entitled to receive.
H. The decisions made by my Health Care Agent on my behalf shall have the same priority as my decisions would have if I were competent over decisions by any other person, including a person acting pursuant to a durable power of attorney, except for any limitation I state below or a specific Court Order overriding this Health Care Proxy.
I. If I object to a health care decision made by my Health Care Agent, my decision shall prevail unless it is determined by Court Order that I lack capacity to make health care decisions.
J. Nothing in this proxy shall preclude any medical procedure deemed necessary by my attending physician to provide comfort care or pain alleviation including but not limited to treatment with sedatives and painkilling drugs, non-artificial oral feeding, suction, and hygienic care.
K. (OPTIONAL) I understand that by signing this document I am giving my health care agent the authority to exercise his/her best judgment regarding all health care decisions including decisions about life-sustaining treatment. Regarding decisions about life-sustaining treatment, as authorized under Section 5 of M.G.L. c. 201D, it is my desire that my agent may be guided by the following statement of my beliefs. I believe that death is a natural part of life. Dying should not be unnecessarily prolonged, to my own detriment and indignity, and to the agony of my family. While I believe in the sanctity of life, I feel that circumstances may exist in which the effort to sustain my life may itself degrade or demean the humanity without which I feel my life has no meaning. I believe also that I have the right to refuse medical treatment, whether or not I am mentally competent to do so, and that my family, guardian, attorney and physicians should undertake to act under this statement without guilt or feeling of responsibility on their part, since their actions are in furtherance of my wishes. Therefore, if I should become unable to participate meaningfully in decisions concerning my medical care and treatment, under the circumstances described below, or under similar circumstances, it is my desire that my wishes as described be carried out, as expeditiously as possible. This statement is made after careful consideration and reflection, and with full awareness of the pain, indignity, and discomfort which may itself accompany the withholding or withdrawal of care and sustenance, but with also the fullest faith that the judgment of my family and physicians in making any decision will comport with my wishes. It is therefore my intention that these directions be honored by my family and physicians as a final reflection of my legal right to refuse medical treatment under the conditions specified, and I accept the consequences of this refusal.
1. If I come to suffer an injury, disease or illness considered incurable and terminal by my physicians, I direct my physicians and all medical personnel to withhold or withdraw all life-sustaining procedures which would serve only to prolong the dying process artificially, whether considered active or passive, ordinary or extraordinary, including, without limitation, the withholding of food and water.
2. If I suffer serious and irreversible brain damage as a result of any illness or injury to the extent that I have lost cognitive function with no significant likelihood of regaining it, whether or not I am terminally ill, I direct my physicians and all medical personnel to withhold or withdraw all life-sustaining procedures which would serve only to prolong the dying process artificially, whether considered active or passive, ordinary or extraordinary, including without limitation the withholding of food and water.
L. I specifically limit my Health Care Agent’s authority as follows:
(OPTIONAL)
Example
1. I acknowledge that I received medication for the treatment of mental illness in the past. Some of these medications I have found helpful, and others have caused me discomfort and have not been helpful. I have expressed my feelings about these medications to my health care agent and I have faith that she will only consent to the administration of medications or treatments that I would consent to if I were competent. However by executing this health care proxy it is my intention to limit my agent’s authority by :
2. My agent may only consent to the following medication or treatment’s if they are prescribed by my treating psychiatrist. (if they are prescribed by Dr. “X”.) (if they are required to permit me to remain out of a psychiatric hospital.) My agent may not consent to the administration of any other treatment or medication for the treatment of my mental condition.
3. My agent may consent to the administration of any medication or treatment that is prescribed by my treating psychiatrist except.
4. My agent may consent to any medication, but she may not consent to the administration of electro-convulsive therapy.
4. Revocation
This Health Care Proxy shall be revoked upon any one of the following events:
A. my execution of a subsequent Health Care Proxy;
B. my divorce or legal separation from my spouse where my spouse is named as my Health Care Agent;
C. my notification to my Health Care Agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the Health Care Proxy.
5. Signature of Principal
I hereby sign my name to this Health Care Proxy in the presence of two witnesses.
Signature: ____________________________________
Date:
Complete here if the principal is physically incapable of signing:
I hereby sign the name of the principal at the principal’s direction and in the presence of the principal and two witnesses.
Name of Principal: __________________________________
Name of Signatory: _________________________________
Date:
Address of Signatory: ________________________________
________________________________
6. Witnesses
WITNESS ONE: I, the undersigned, have witnessed the signing of this document by the principal or at the direction of the principal and state that the principal appears to be at least eighteen years of age, of sound mind and under no constraint or undue influence. I have not been named as Health Care Agent or alternate Health Care Agent in this document.
Signature: _______________________________________
Name (print): _____________________________________
Address: _______________________________________
_______________________________________
Date:
WITNESS TWO: I, the undersigned, have witnessed the signing of this document by the principal or at the direction of the principal and state the principal appears to be at least eighteen years of age, of sound mind and under no constraint or undue influence. I have not been named as Health Care Agent or alternate Health Care Agent in this document.
Signature: _______________________________________
Name (print): _____________________________________
Address: _______________________________________
_______________________________________
Date:
7. Statement of Health Care Agent and Alternate (Optional)
Health Care Agent:
I have been named by the principal as the principal’s Health Care Agent in this document.
(Please check one)
___ I am not an operator, administrator or employee of a hospital, clinic, nursing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the principal is presently a patient or resident or has applied for admission.
___ I am an operator, administrator or employee of a hospital, clinic, nursing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the principal is presently a patient or resident or has applied for admission, and I am also related to the principal by blood, marriage, or adoption.
I have read this document carefully and accept the appointment.
_________________________________
Signature of Health Care Agent
Alternate Health Care Agent
I have been named by the principal as the principal’s alternate Health Care Agent in this document.
___ I am not an operator, administrator or employee of a hospital, clinic, nursing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the principal is presently a patient or resident or has applied for admission.
___ I am an operator, administrator or employee of a hospital, clinic, nursing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the principal is presently a patient or resident or has applied for admission, and I am also related to the principal by blood, marriage, or adoption.
I have read this document carefully and accept the appointment.
_________________________________
Signature of Alternate Health Care Agent
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