Many times, people lose the capacity to make personal and financial decisions on their own behalf. Often times this occurs as a result of declining mental faculties, such as when the person reaches an advanced age, suffers from mental illness, or experiences traumatic or unexpected injury. Regardless of the reason, when an individual loses the ability to make decisions on their own someone must step in to act as a surrogate and make these necessary decisions for the person who no lacks the mental or physical capacity to do so on their own. These decisions can include where to live, what medical procedures are appropriate, can and how should the person travel, as well as simple financial transactions such as banking and the payment of bills. Under New York State Mental Hygiene Law, Article 81, someone concerned with the welfare of a person who is alleged to have lost the capacity to make decisions for him or herself (“alleged Incapacitated Person”) can petition the Court to have a guardian appointed to make many if not all of these decisions.
Article 81 of the Mental Hygiene Law permits the appointment of a guardian for an Incapacitated Person to oversee financial and/or health care decision making. The court has discretion to grant as broad or as limited an array of powers as deemed necessary in order to protect the health and finances of the alleged incapacitated person. Prior to the enactment of Article 81 in 1993, the law only allowed for a heavy handed and clumsy, all or nothing, framework. The court could only deem the alleged incapacitated person either capable to make decisions for him or herself or, totally incapacitated without the ability to make any decisions whatsoever. With the passage of Article 81, the law now permits the court to narrowly tailor the powers a guardian possesses to fit the capabilities and limitations of the alleged incapacitated person. The efficacy of Article 81 lies in its flexibility, allowing judicial decision makers to tailor a guardianship individually to the case at hand.
Despite the seemingly amenable nature of Article 81, designed to fit any particular situation, outside the laws purview is psychiatric care and treatment in an in-patient setting as well as providing psychiatric medication to an individual over their objection. This is true both for psychotropic medication and electro-convulsive therapy (ECT). As the statute is written, Article 81 would appear to allow for a guardian to make decisions regarding psychiatric medications and ECT. However, courts have interpreted the statute in such a way so as to eliminate a guardian’s ability to possess this authority.
This article will discuss, in broad terms, what is required for a court to appoint a guardian to make personal and/or financial decisions for an Incapacitated Person. It will also discuss the limitations on a guardian’s authority as it relates to psychiatric treatment and end of life decisions and the reasons for these limitations.
When a Guardian May Be Appointed
A court may appoint a guardian when it is presented with facts which convince the court, by clear and convincing evidence, that the subject of the guardianship is likely to suffer harm because: (1) the person is unable to care for their personal or property needs; and (2) the person cannot adequately understand and appreciate the nature and consequences of their own inability. In addition, if the person recognizes their own need for assistance with personal and financial decisions and consents to the appointment of a guardian the court can provide them with a guardian in accordance with the person’s functional limitations and ability to manage his or her property.
The court, in reaching a decision on incapacity, will take into account the person’s functional limitations and abilities, such as managing his or her activities of daily living (dressing, feeding, toileting, etc.). Moreover, the court will also take into consideration the persons wishes, preferences, value choices.
Some powers the court may grant to a guardian are the power to make gifts, decide where the person can live, make decisions regarding major medical treatment, decide if the person can travel or have a driver’s license, initiate lawsuits, sell property, pay bills, and apply for government benefits. This is certainly not an exhaustive list of powers. As stated earlier, the court can grant as wide or narrow a set of powers to the guardian as the court deems necessary in order to meet the particular functional capabilities and limitations of the alleged Incapacitated Person.
Limitations on A Guardian’s Power as it Relates to Psychiatric Care and Treatment and End of Life Issues
Article 81 specifically excludes the power to involuntarily commit an individual to a psychiatric institution. While a guardian may have the general power to choose the place where the incapacitated person may live, this does not include involuntary psychiatric hospitalization. If the guardian believes the Incapacitated Person for whom he or she is responsible requires care and treatment in a psychiatric hospital the guardian must pursue options available in Article 9 of the Mental Hygiene Law, which govern involuntary psychiatric treatment.
More controversial has been a guardian’s power to consent to or refuse treatment of the Incapacitated Person with psychiatric medications and/or ECT treatment. The guardianship statute, as written, actually allows for a guardian to be granted the power to “consent to or refuse generally accepted routine or major medical treatment”, which includes “the administration of psychotropic medication or ECT”.
However, despite this clear language in the statute, New York courts have concluded that this power cannot be granted to a guardian. In other words, the courts have interpreted the statute so as to remove this authority and therefore, a court cannot grant a guardian the authority to accept or reject psychiatric treatment on behalf of an incapacitated person. While a guardian cannot be granted this power, if the incapacitated person is involuntarily confined to a psychiatric hospital, the hospital can apply to the court for an order to treat the person with medication or ECT over the person’s objection.
The Court’s reasoning for removing this authority from the guardianship law was based upon prior case law regarding the involuntary treatment of psychiatric patients. In a landmark case, Rivers v. Katz, the Court of Appeals, New York’s highest court, concluded that only if a court finds that a person (1) lacks the capacity to make a reasoned decision regarding the risks and benefits of the proposed medication, (2) the benefits of the proposed medication outweigh the risks, and (3) there is no less intrusive alternative, can medication be given to an individual over their objection.
Comparing the decision in Rivers v. Katz and the guardianship law, the Court concluded that they are incompatible. First, a guardian may be granted the power to make medical decisions for an indefinite period of time. As a result, it is possible that at the time the proposed involuntary psychiatric medication or treatment is proposed the individual in question may have regained at least some capacity in order to be able to make a reasoned decision about the risks and benefits of the psychiatric medication and/or ECT. More importantly however, the guardianship statute provides no mechanism to weigh the risks and benefits of the proposed medication or to reach decisions about whether there are less restrictive alternatives than the treatment requested. As mentioned earlier, both of these considerations are required under Rivers v. Katz.
Another controversial topic revolves around a guardian’s authority to make decisions regarding life sustaining treatment. Simply put, the enactment of the guardianship law did not alter the legal landscape in this area. A guardian may be provided this daunting authority. However, a guardian may only be granted this power where there is clear and convincing evidence that these were the prior expressed wishes of the Incapacitated Person. Such clear and convincing evidence can be in the form of a prior written document when the person had capacity, such as a health care proxy, living will, or do not resuscitate order. In addition, evidence can also be presented to the court in the form of verbal expressions, such as specific conversations had with the person who is to be deprived of life sustaining treatment. It should be noted, that general perceptions or intuitions regarding the person’s wishes on life sustaining treatment, or the wishes of family or the guardian as to what they would choose, will not suffice, no matter how close the third party decision maker is to the infirm individual. Moreover, where a guardian wishes to withhold, or withdraw, such treatment, the guardian must return to court for this specific grant of authority. This is true even if at the time of appointment the guardian was granted the widest swath of authority.
Article 81 has provided great relief to those who are incapacitated, those who care for and love them, as well as the courts in that its flexible nature allows the incapacitated individual to retain as much freedom as possible while still allowing for assistance in the areas that are needed. However, when it comes to psychiatric treatment and care, an individual approach is required.
This approach must take into account the specific facts at the time in question. This individual process is required because of the unique situation that psychiatric illness presents. Symptoms vary wildly from person to person, even within the same diagnosis. The effects that any particular symptom of mental illness may have on one’s capacity to make decisions regarding medication also varies from person to person. Additionally, the side effect profile that psychiatric medications present is equally diverse. Hence, nothing less than an individual approach will suffice.
Likewise, because of the seriousness and the permanency of a decision to withhold, or withdraw, life sustaining treatment that power can only be granted where there is specific proof that this is what the Incapacitated Person would have wanted were they capable of making the decision for themselves.