(Minnesota Supreme Court opinion, published September 17, 2014)
On September 17, 2014, the Minnesota Supreme Court (MSC) finally published its long-awaited opinion, which dealt with the issue of whether a court-appointed guardian of a ward, without prior court approval, could decide to discontinue life-support for their ward. The MSC held that the guardian DOES have that power, without seeking prior court approval, if all “interested parties are in agreement.”
The MSC described the circumstances in which Mr. Tschumy, the subject of the case, became dependent on life-support: (excerpt from the opinion)………...”On April 15, 2012, Tschumy choked on a sandwich and went into respiratory and cardiac arrest. Tschumy lost his pulse, and the group home staff administered CPR. Doctors at Abbott Northwestern Hospital were able to remove fragments of the sandwich, but a CT scan showed Tschumy had an “anoxic brain injury.” In a report later filed with the district court, Tschumy’s attorney laid out a dire prognosis for Tschumy. He said that since Tschumy had been in the hospital, “his conditions of severe and irreversible anoxic encephalopathy, continuous seizures, and respiratory failure have not improved.” Initial opinions of the doctors regarding Tschumy’s “dismal prognosis for return of meaningful neurologic recovery” were confirmed as time passed, “as his seizures [could not] be controlled without deep sedation” and seizure medication. Tschumy’s treatment team was in “unanimous agreement that this unfortunate man [had] suffered irreversible brain damage and [could not] survive.”………
The lack of a unified opinion among the Justices of the MSC is a reflection of the public’s split, no doubt – this is controversial, and of great importance to those interested in end-of-life law and policy. The MSC opinion (and the prior decisions from the Minnesota Court of Appeals and the original 4th District Court Order) are all available on line if you use the title of the case (listed above). This entry focuses on the recent MSC final decision specifically, and the consequences of that decision on the lives of certain Minnesotans.
First – if this doesn’t make you want to execute a Health Care Directive (HCD), nothing will!
Although the guardians and conservators with whom I am acquainted are superior human beings with very high ethical and professional standards, the point is that they are court–appointed, and unless you exercise your right to nominate the people who you would like to function in these jobs, should the need arise, the court will do it for you. When the court appoints someone to make health care decisions for you, it’s called a Guardianship. But, you can make your own choice for someone to function in this role, should the need arise. This can be done in a number of ways but a HCD and Power of Attorney (POA) are common ways to nominate a Guardian and Conservator. This is not only advice for adults who are concerned about their capacity to make health care decisions as they age, but also for parents of minor children.
Second – it is important to note that I voice concern for a narrow set of adults (adults who have capacity now to make such a choice for a health care agent, and who do not have family and friends they trust to assist their health care professionals and/or guardians with these choices – other adults who know your wishes and would/could weigh in, if such a time came that you lost your ability to make your own health care decisions).
The MSC says the guardian of a ward (a ward is the person for whom the court has appointed a guardian) may make the decision to withdraw life support without prior court approval if there is no one disputing the decision. If you have no family member or friend who is interested only in you, and how this decision affects you, and how it supports your wishes for end-of-life treatment, then offering the perspective of physicians, hospitals, and ethics committees does not make me feel confident enough as the alternative. I don’t mean to imply that these parties, who will be important and involved during an end-of-life crisis and decision, are unethical and thoughtless. I imagine these individuals to be of high moral standing and ethical fiber. But, the fact remains that they also have other interests besides you.
Here are two excerpts from the MSC opinion – the first is from the court’s opinion, which touches on the concerns mentioned above, but does not address them. The subsequent excerpt is from one of the dissents (a dissent disagrees with the majority holding). Justice Anderson’s dissent addresses the matter directly.
OPINION: GILDEA, Chief Justice (excerpt)
………..“We understand and share Justice Anderson’s concern for the well-being of incapacitated wards, particularly those who as here, have no family or friends to speak for them. Nothing we say in this opinion should be viewed as prohibiting any interested family member or employee of the hospital or other health care facility from looking to the courts if there is a dispute over what is in the ward’s best interest. When there is no dispute, however, about what the ward would have wanted, or what is in the best interests of the ward, court involvement adds little to the process. Courts are “ill-equipped to pass judgment on the specialized expertise required of a physician, particularly when such a decision is likely to have a direct impact on human life.” Campbell v. St. Mary’s Hosp., 312 Minn. 379, 389, 252 N.W.2d 581, 587 (1977). The district court, of course, has the authority to intervene when the interested parties disagree about the appropriate course of action. But in this case, when the guardian, the involved medical staff, and the hospital ethics committee all agreed that it was in Tschumy’s best interest to discontinue life-sustaining treatment, the guardian did not need prior court approval to consent to discontinuation of that treatment.”………..
DISSENT: ANDERSON, Justice (dissenting). (Excerpt)
“I begin by noting that today we announce a very narrow rule of law involving a ward with no family or friends to speak for him. The majority concludes that a guardian in such a situation has the ability to order the termination of the ward’s life-sustaining medical care, and that this power is implicit in the guardian’s ability to give consent for necessary medical treatment and so does not require specific authorization by a district court. For the reasons stated below, I respectfully disagree. More importantly, I worry that the consequences of this rule of law are not so limited.”………….
……“We deal here not with the more typical end-of-life treatment circumstances in which competent adults have expressed their wishes, or better yet, have prepared health care directives, or in which family or even close friends may well know the wishes of the patient. Rather, for many of our fellow citizens who are cognitively impaired, it is a different story. It is not unusual for the disabled to have the assistance of court-appointed guardians. Perhaps those guardians have some training or knowledge on making end-of-life decisions, and perhaps not. Perhaps those guardians have the best interests of the ward in mind, and perhaps not. Perhaps the ward has expressed a view on medical care, and perhaps not. But once the decision is made by the guardian to withdraw medical care, for good or ill, whether for sound motives or base motives, whether that decision is well informed from a medical perspective or otherwise, it will be made in silence and with no check or review of the guardian’s judgment.”
So, what does this mean?
If you want your voice to be heard, your end-of-life decisions to be honored, and your choice of an agent (the person who will speak for you), you must make those choices and put them in writing – execute a valid HCD!
How can you get a Health Care Directive?
You don’t need an attorney to make a HCD. There are many “download-able” options (from non-profit organizations and health care entities) available on line – the first one that comes to mind is “Five Wishes,” for example. Some are at no cost, some at very low cost. As an attorney, however, I can confidently suggest that you consider hiring an experienced attorney (who handles these matters regularly). An attorney can:
- ensure the document is validly executed;
- ensure that it says what you want it to say in clear, straight-forward, unambiguous language, which can be understood by many different types of professionals (not just your family and friends, but also the medical profession);
- explain how to best use and store the document; and
- draft specific language to your HCD that is unique to your concerns and situation, possibly avoiding common controversies and/or snags in using the document.
This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.com
ALL READERS: This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader. It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.Contact Bridget-Michaele Reischl at: DECORO LAW OFFICE, PLLC 6 West 5th Street, Suite 800-D Saint Paul, MN 55102 (651)-321-3058 [email protected]