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Guardian’s Guide To End-of-Life Decision Making In Hospitals And Nursing Homes When Their Ward’s Wishes Are Unknown (MHL Article 81)

Guardian’s Guide to End-of-Life Decision Making in Hospitals and Nursing Homes When their Ward’s Wishes are Unknown (MHL article 81)

Being a guardian of another adult is hard work. In fact, serving as an article 81 guardian in New York is akin to having a part-time job, or even full-time job.

Among the many difficult decisions guardians must make for their mentally incapacitated “wards” are end-of-life decisions.

In New York, assisted suicide is not an option. Period. Not for guardians. Not for anyone. But that doesn’t mean you can’t refuse treatment and die on your own terms. It also doesn’t mean that guardians can’t refuse medical treatment on behalf of their wards.

Guardians often must make a judgment call about their ward’s life, especially if their incapacitated ward is in a hospital or nursing home. If their ward’s preferences and wishes about end-of-life treatment are unknown, the guardian must act in their ward’s “best interest”. If your 87-year-old bedridden ward with severe dementia never told you or anyone else to “pull the plug” prior to losing capacity, you must decide what’s in their “best interest”. If they did express a preference, that should be followed.

So when a guardian must start making end-of-life decisions for their ward in a hospital or nursing home setting, what do they do? What’s the first step? How do guardians make sure the decisions they make are ethical, legal, and authorized.

What follows is a system for article 81 guardians in New York to use when making end-of-life decisions for their ward in a hospital or nursing home. Remember, every case is different, with unique facts and circumstances. This is a guide. Not legal advice. And certainly not medical advice.

Step 1: Read the Order & Judgment appointing you guardian

This is the most important step. The Order & Judgment appointing you guardian defines your powers, including powers regarding end-of-life decisions. For example, the sample form Order & Judgment provided by the New York County Supreme Court, includes a typical provision in many Orders and Judgments, which reads as follows:

[The guardian may] [c]consent to or refuse generally accepted routine or major medical or dental treatment (including the power to consent to an “Order Not to Resuscitate,” as a surrogate, pursuant to Public Health Law §2965 [2][a][I]), provided that treatment decisions are made consistent with the findings of MHL § 81.15 and in accordance with the standards set forth in MHL § 81.22 (a)(8).

This clause means the guardian can enter an “Order Not to Resuscitate” (meaning don’t perform CPR) in the ward’s medical record without going to Court. In other words, the guardian can consent to withhold CPR, as long as their ward never expressed a preference to the contrary, and as long as it’s in their ward’s best interest.

However, the provision says nothing about withholding other forms of end-of-life treatment, such as intubation and mechanical ventilation, artificially administered fluids and nutrition, and antibiotics. Many Orders & Judgments contain similar provisions to the one above, which limit the guardian’s powers to withholding CPR only, forcing the guardian to return to Court for authority to enter a “Do Not Intubate Order”, or “DNI Order”.

The DNI Order prevents medical staff from placing a tube down your ward’s throat which will inevitably lead to very unpleasant tracheotomy surgery. The DNR and DNI Orders generally go hand and hand. They are part of a full package. To play baseball you’ll need bats and balls. Playing with a stick just isn’t the same. To die peacefully, and avoid being kept alive longer than nature intends, you’ll want a DNR and DNI. You’ll also want doctors to be able to withhold tube feeding and artificial hydration.

Because of the limits placed in the sample Order & Judgment, and because the nature of the decision is so serious, it often makes sense for the guardian to make an application to the Court for approval to withhold not only CPR, but intubation, tube feeding, and artificial hydration. I discuss the Court application in Step 3. But before making the application, the guardian should be sure that withholding life-sustaining treatments is in their ward’s best interest.

Step 2: Talk to your ward’s medical caregivers

An “Order Not to Resuscitate” is a writing in your ward’s medical record telling medical professionals not to perform CPR on your ward if their heart stops beating. CPR can crush your ward’s ribs and puncture their lungs, causing great pain. It’s safe to say it would be immoral to perform CPR on a bedridden 92-year-old with severe dementia living in a nursing home. On the other hand, if your ward is age 50, not terminally ill, and is only temporarily in a hospital, it probably isn’t appropriate to have DNR and DNI medical orders in their record. There is plenty more life to live and their ailment may only be temporary.

This is a judgment call, but I generally advise guardians to consult with their ward’s attending physicians, nurses, and social workers about this decision.

And remember, we are only talking about circumstances where the ward’s wishes are unknown. If the ward ever expressed an opinion about end-of-life decisions before losing capacity (and sometimes even after), their wishes should be followed.

Step 3: Make an application with the Court to get the Judge’s blessing

As explained earlier, even if the Order & Judgment allows you to enter a DNR Order in your ward’s medical record, it’s generally best practice to have a Judge make a separate Court Order authorizing you to enter DNR and DNI medical orders.

To make a successful application you’ll want to:

  • Get affidavits from the medical professionals caring for your ward, explaining why DNR and DNI Orders are appropriate.
  • Make your own affidavit or affirmation as well. Attach the proposed Order, which will permit you to execute a proposed MOLST. The MOLST should filled out by you, but not signed. You’re showing the Court what you would like to enter.
  • You should fill out the MOLST in consultation with an appropriate medical professional familiar with your ward’s care.
  • You will need to figure out the Court’s procedural rules for making the application. Usually such applications are made by Order to Show Cause.

My office can guide you along the way and take over this process for you. Call us at (646) 820-4011 or get in touch by email at djr@djrattorney.com.

Daniel J. Reiter, Esq.

Daniel J. Reiter is an attorney admitted to practice in New York. Mr. Reiter focuses in the areas of estate and trust litigation, non-routine Surrogate’s Court work, adult guardianship and mental health law, power of attorney litigation, and civil litigation and dispute resolution. He also routinely practices in the areas of estate planning, elder law, and Medicaid.

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