In re Guardianship of L.N. ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Concord Probate Division
No. 2018-0701
IN RE GUARDIANSHIP OF L.N.
Argued: October 10, 2019
Opinion Issued: February 19, 2020
Richard G. Anderson Law Offices, PLLC, of New London (Richard G.
Anderson on the brief and orally), for the respondent.
Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor
on the brief), for Concord Hospital, as amicus curiae.
Risa Evans and John Greabe, University of New Hampshire, Franklin
Pierce School of Law, of Concord (Ms. Evans and Mr. Greabe on the brief, and
Ms. Evans orally), for The Warren B. Rudman Center for Justice, Leadership &
Public Service, as amicus curiae.1
1 The University of New Hampshire School of Law Rudman Center filed an amicus curiae brief
in support of the decision of the trial court in response to our invitation. See Mata v. Lynch,
135 S. Ct. 2150, 2154 (2015) (where parties were in agreement on legal issue, amicus curiae
was appointed to defend the appealed decision).
HICKS, J. The respondent, L.N., appeals an order of the Circuit Court
(Moran, J.) denying a motion to authorize removal of life support filed by her
guardian. We reverse the order denying authority to remove life support and
vacate, in part, the order appointing the guardian.
The trial court found, or the record supports, the following facts. On
September 12, 2018, L.N. was transported to Concord Hospital after having
been found unresponsive in her home. Tests indicated that L.N. had suffered a
stroke. The court found that L.N., who was 69 years old at the time of the
orders on appeal, had “enjoyed a full, active, independent life” prior to her
stroke on September 12. Thereafter, L.N. remained in the hospital on a
ventilator to assist with breathing and a nasal-gastric tube for nutrition and
hydration. L.N.’s attorney informed the court in a motion for expedited hearing
that “[a]fter consulting with personnel, it has been indicated that [L.N.] will
probably not survive the massive stroke which precipitated this hospitalization,
but there is no one with authority to act.” There was no evidence that L.N. had
previously executed either a living will or a durable power of attorney for
healthcare. See RSA 137-J:20 (2015).
Two petitions for guardianship over the person of L.N. were filed — one
by a close friend, G.H., and a second by L.N.’s friend and former employer,
M.C. The court was advised that L.N. had only one known living relative, a
nephew who had informed the hospital that he could not serve as L.N’s
guardian.
After a hearing, the court found, beyond a reasonable doubt, that L.N.
was incapacitated and in need of a guardian over her person and estate. See
RSA 464-A:9, III (2018). The court issued an order appointing M.C. (the
guardianship order). Noting that all parties had requested a decision on
whether the guardian should be granted authority to remove life-sustaining
treatment from L.N., the court deferred ruling on that issue until after further
hearing. The court scheduled an expedited hearing to address whether the
guardian “should be awarded authority to remove life-sustaining treatment”
and the guardianship order specifically stated that “[t]he guardian does NOT
have the authority to remove life sustaining treatment. A further hearing will
be scheduled to address that issue and a written order will issue thereafter.”
(Bolding omitted).
At the subsequent hearing, held on October 17, the court heard
testimony from the guardian and three professionals from the hospital: Dr.
Alejandro Saranglao, a pulmonary critical care specialist; Dr. Maureen Hughes,
a neurologist; and Adeline Camelio, a social worker.
Dr. Saranglao testified that L.N. was not “show[ing] any signs of higher
cortical functions, awareness,” and he did not think she had any realistic
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possibility of a meaningful recovery. The “most positive outcome” in L.N.’s
case, according to Dr. Saranglao, “would be persistent vegetative state.”
Dr. Hughes testified that L.N. had suffered a bilateral ischemic stroke,
which would tend, among other things, to “affect[] the nerves that maintain
consciousness.” She stated that L.N. could spontaneously blink, open her eyes
and grimace, but that she was not reacting to her environment or
communicating at even the most basic level. Dr. Hughes further opined that
L.N. was unlikely to regain that function. She testified that the damage to
L.N.’s brain was irreversible, and that, without L.N.’s ability to communicate,
the doctors had no ability to employ rehabilitation. Finally, Dr. Hughes
testified that there was no dissension among the physicians at the hospital as
to the appropriate treatment in this case, and that, in the previous week,
Hospital neurologists “evaluat[ed] [L.N.’s] case as presented . . . by the
neurologist who’d seen her most recently and the MRI reports, and [they were]
all in agreement that it’s a very poor prognosis for neurologic recovery.”
The guardian, who testified that she had known L.N. for approximately
30 years and worked with her for 18 years, indicated that while L.N. never
made a specific statement about her own end-of-life preferences, the two had
had “very plain, open conversations” about the subject when people they knew
had been dealing with end-of-life situations. Based upon those conversations,
the guardian’s sense was that L.N. “would want to be allowed to have a natural
death.”
At the conclusion of the hearing, the court requested that the Hospital
provide relevant medical records including MRIs and CT scans that had been
performed on L.N. The court also requested an opinion from the Hospital’s
ethics committee.
After receiving the requested documents, the court issued an order on
October 22, 2018. The court concluded that the authority granted by statute
to a guardian over the person “does not include the authority to remove a ward
from life support without Court approval.” The court also found “that a
question remains at this time as to whether there is likelihood that [L.N.] would
regain an ability to react to her environment, communicate, or have any degree
of independent function” and, therefore, concluded that it was in L.N.’s best
interests “to stay a decision on giving the guardian the authority to withdraw
life sustaining treatment for an additional 20 days, to provide the Court with
additional information over a 60-day post-incident period to see if there is any
further improvement by [L.N.].” The court ordered the Hospital to provide
neurological consult notes for the period from October 17, 2018, through
November 7, 2018, and the results of any further MRIs or EEGs.
On November 19, 2018, the court issued its further order on the motion
to authorize removal of life support. The court first “presume[d] that [L.N.]
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would have directed her healthcare providers to provide her with resuscitation,
hydration and nutrition to a degree sufficient to sustain her life, subject to
scenarios where the presumption would not apply.” The court then found that
“it has not been shown by clear and convincing evidence that [L.N.] would have
rejected artificial nutrition and hydration and resuscitation. It has also not
been shown by clear and convincing evidence that [L.N.] is in a permanent
vegetative state or that her movements are only reflexive.” The court concluded
that, “in cases of doubt, the Court must assume that the patient would choose
to defend life” and did “not find that [L.N.] — under the facts in this case —
would choose to have life support removed and a natural death process to
occur.”
The guardian moved the court to reconsider. She stated that “[s]ince the
last hearing, [L.N.’s] condition has stabilized. There has been no improvement,
and some things have become worse with the passage of time, including her
prognosis.” The court scheduled a status conference to address the motion to
reconsider, but subsequently cancelled the same and stayed further
proceedings upon receiving notification that the instant appeal had been
accepted.
On appeal, L.N. argues that the probate court erred in determining that
“it had jurisdiction to make a determination as to the appropriateness, or lack
thereof, of the removal of life support in the case of a patient who was in a
persistent vegetative state” where “no party challeng[ed] the proposed removal.”
She further argues that, even if the court had the authority to exercise its
discretion in this matter, its findings are unsupported by the testimony.
Our standard of review of a circuit court probate division decision is
governed by statute: “The findings of fact of the judge of probate are final
unless they are so plainly erroneous that such findings could not be reasonably
made.” RSA 567-A:4 (2019). Accordingly, “we will not disturb the probate
division’s decree unless it is unsupported by the evidence or plainly erroneous
as a matter of law.” Hodges v. Johnson, 170 N.H. 470, 480 (2017).
I. Issues on Appeal
Although L.N. appears, at times, to challenge the trial court’s
jurisdiction, she explicitly states that her “argument was, and remains, that
there is simply no statutory basis for . . . a requirement” that her guardian
obtain prior court approval to withdraw life-sustaining treatment. Accordingly,
we read her argument not as a challenge to the trial court’s subject matter
jurisdiction, but rather, as a challenge to the court’s statutory authority to
impose such a requirement. This argument raises an issue of statutory
interpretation, which is a question of law subject to de novo review. See Rogers
v. Rogers, 171 N.H. 738, 743 (2019).
4
In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed by the words of the statute
considered as a whole. We first look to the statutory language, and
whenever possible construe that language according to its plain
and ordinary meaning. We interpret legislative intent from the
statute as written and will not consider what the legislature might
have said or add language that the legislature did not see fit to
include. When the language of a statute is unambiguous, we do
not look beyond it for further indications of legislative intent.
Id. (citations omitted).
RSA 464-A:25 provides in relevant part:
I. A guardian of an incapacitated person has the following
powers and duties, except as modified by order of the court:
....
(d) A guardian of the person may give any necessary consent
or approval to enable the ward to receive medical or other
professional care, counsel, treatment, or service or may
withhold consent for a specific treatment, provided, that the
court has previously authorized the guardian to have this
authority, which authority shall be reviewed by the court as
part of its review of the guardian’s annual report. No guardian
may give consent for psychosurgery, electro-convulsive therapy,
sterilization, or experimental treatment of any kind unless the
procedure is first approved by order of the probate court.
RSA 464-A:25, I(d) (2018). L.N. notes that RSA 464-A:25, I(d) explicitly lists
“four specific categories of treatment” that require prior approval by the probate
court, but “makes no mention whatsoever of life-sustaining treatment, life
support, etc.” She argues, therefore, that “there is simply no statutory basis”
for requiring the guardian to obtain prior court approval for the withdrawal of
life support.
The Warren B. Rudman Center for Justice, Leadership & Public Service,
as amicus curiae (the Rudman Center), counters that while the omission of
language concerning life-sustaining treatment in RSA 464-A:25, arguably
“suggests that a probate court could, in its discretion, empower a guardian to
authorize withdrawal of life-support without any further action by the court,” it
“does not require a probate court to grant such power to a guardian, or suggest
that this power is automatic.” Rather, the Rudman Center argues, “the scope
of the guardian’s power over life support is left to the probate court’s sound
discretion.” It further notes that “the statute allows the court to limit a
guardian’s authority over life-support decisions, as the court did when it first
appointed L.N.’s guardian.” Specifically, RSA 464-A:25, II provides that “[t]he
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court may limit the powers of the guardian of the person or impose additional
duties if it deems such action desirable for the best interests of the ward.” RSA
464-A:25, II (2018); see also RSA 464-A:25, I (Supp. 2019) (providing that “[a]
guardian of an incapacitated person has the following powers and duties,
except as modified by order of the court” (emphasis added)).
The Hospital, as amicus curiae, acknowledges the court’s authority to
limit a guardian’s powers under RSA 464-A:25, II, but notes that the court did
not base its order on that power but, rather, on “its erroneous belief that ‘RSA
464-A:25 does not include the authority to remove a ward from life support
without court approval.’” The Hospital argues that “[t]he Legislature’s decision
not to include life-sustaining treatment as [one of the] treatment[s] requiring
Court approval [in RSA 464-A:25, I(d)] means [that] the authority over that
decision automatically flows from the Guardian’s appointment.”
II. Analysis
We first agree with the Hospital that the court in this case did not base
its decision on RSA 464-A:25, II. Rather, the court explicitly concluded that
“[t]he statutory authority granted to a guardian over the person,” under RSA
464-A:25, “does not include the authority to remove a ward from life support
without Court approval.” Accordingly, this case presents only the narrow issue
of whether that conclusion was correct.
We have never ruled upon the issue now before us. In re Terry, 129 N.H.
111 (1986), presented questions, on interlocutory transfer, “asking whether
there are circumstances in which [the probate court] would have authority
under RSA 464-A:25 to authorize a guardian to order the removal of a
nasogastric tube supplying food and water to the ward, a hospital patient
described as living in a ‘chronic vegetative state.’” In re Terry, 129 N.H. at 112.
We declined to “consider the transferred questions without the benefit of the
judge’s comprehensive findings of fact, made after evidentiary hearing in open
court.” Id. We listed a number of questions, without limitation, that the court
should address, including questions about the ward’s prior competence; her
expression of preference, if any, “about the application or withholding of
procedures to sustain her life in the event she should become incompetent to
accept or reject such procedures”; the ethical standards that physicians
concerned with the case would apply in recommending for or against removal
of the nasogastric tube; the effects of withdrawal on the ward, and her
awareness, if any, of those effects; in the event of withdrawal, what medical
care would be extended to the patient; the financial consequences to various
interested parties; and, if the nasogastric tube were not withdrawn, what would
be “the prognosis and who [would] bear the cost of [the ward’s] maintenance.”
Id. at 112-13. We further instructed that “[t]he trial court should explicitly
indicate whether it makes each finding on these or other subjects to the degree
6
of a preponderance of the evidence, to a clear and convincing degree, or to
some other degree of relative certainty.” Id. at 113.
We note that in the instant case, the trial court made findings on each of
the questions set forth in Terry and “[a]pplying the Terry factors, the Court
[found] that the guardian has not proven by clear and convincing evidence that
the Guardian’s Motion for Authority to Remove the Ward from Life Support
[should] be granted.” While we do not fault the trial court for seeking guidance
in our only published decision on the subject of end-of-life decision-making for
an incompetent ward, we point out that Terry is a nonprecedential decision of
this court that did not establish factors or standards to be applied in future
cases. Rather, in a three-page memorandum opinion citing no law, we
“respectfully decline[d] the interlocutory transfer,” noting that “the stipulated
factual basis for the transfer [was] too tentative and incomplete to demonstrate
that the circumstances of the case actually raise those questions.” Id. at 112.
We set forth a non-exhaustive list of findings for the court to make about the
particular ward in that case and stated that “[a]fter the probate court has made
such findings, we will stand ready to consider whether to accept any renewed
request for interlocutory transfer of questions of law.” Id. at 113. Accordingly,
Terry set no precedent, and we now write on a clean slate.
A. A Guardian’s Authority Under RSA 464-A:25, I(d)
Under RSA 464-A:25, I, “except as modified by order of the court,” a
guardian of an incapacitated person has the powers and duties specified in,
among other provisions, subparagraph d. RSA 464-A:25, I. We conclude that
the language “except as modified by order of the court,” RSA 464-A:25, I, refers
to the court’s authority under RSA 464-A:25, II to limit the guardian’s powers
“if it deems such action desirable for the best interests of the ward,” RSA 464-
A:25, II. We further conclude that the language “provided, that the court has
previously authorized the guardian to have this authority,” RSA 464-A:25, I(d),
does not contemplate a separate and explicit authorization for the specific
medical treatment or procedure at issue; rather, it simply means that the
court, having found the ward incapacitated due to a functional limitation
impairing the ward’s ability to secure and maintain healthcare for himself or
herself, grants the guardian the general authority to make healthcare decisions
for the ward. See RSA 464-A:2, VII, XI (2018), :9 (2018); see also In the Matter
of Salesky & Salesky, 157 N.H. 698, 703 (2008) (interpreting order appointing
co-guardians such that the rights removed from the ward due to his incapacity
to exercise them “were the very powers and authorities conferred, and the
duties and obligations imposed upon the co-guardians” (quotation omitted)).
Accordingly, unless the court imposes a limitation under RSA 464-A:25, II, a
guardian who has been granted authority to make healthcare decisions for a
ward, who is incapacitated to make his or her own such decisions, possesses
the general authority described in RSA 464-A:25, I(d). We now examine
7
whether such general authority includes the authority to terminate life support
for a ward in appropriate circumstances. We conclude that it does.
Except with respect to the specifically-excepted procedures, RSA 464-
A:25, I(d), like the conservatorship statute at issue in Conservatorship of
Drabick, 245 Cal. Rptr. 840 (Ct. App. 1988), superseded by statute as noted in
Conservatorship of Wendland, 28 P.3d 151, 166 (Cal. 2001), “confers authority
in broad terms without distinguishing between relatively minor and relatively
major decisions.” Drabick, 245 Cal. Rptr. at 850–51. In Drabick, the court
expressly rejected a prior opinion of the attorney general that had concluded
“[a] California superior court lacks jurisdiction to order or approve the
withholding or withdrawal of extraordinary life support systems or procedures
from a person made a ward or conservatee pursuant to the Probate Code.” Id.
at 850 (quotation omitted). The Drabick Court concluded that “a conservator
[who] already has power under [California Probate Code] section 2355 to make
medical treatment decisions” may decide to withdraw artificial life support from
the ward without “need for judicial approval absent a disagreement among the
interested persons.” Id. at 850, 852.
Other jurisdictions have similarly interpreted general provisions in their
guardianship or conservatorship statutes, particularly those empowering the
guardian or conservator to make medical decisions for a ward, as empowering
the guardian or conservator to withdraw life-sustaining treatment in
appropriate circumstances. See, e.g., In re Estate of Longeway, 549 N.E.2d
292, 298 (Ill. 1989) (finding that where statute “specifically permits a guardian
to make provisions for her ward’s support, care, comfort[,] health, education
and maintenance,” it “impliedly authorizes [the] guardian to exercise the right
to refuse artificial sustenance on her ward’s behalf” (quotation omitted)); In re
Guardianship of Tschumy, 853 N.W.2d 728, 742, 742 n.12 (Minn. 2014)
(holding that plain language of statute “giv[ing] guardians the power to give any
necessary consent to enable the ward to receive necessary medical or other
professional care, counsel, treatment, or service” authorized guardian in that
case “to consent to the discontinuation of [the ward’s] life-sustaining
treatment” (quotation omitted)); Matter of Guardianship of Hamlin, 689 P.2d
1372, 1378 (Wash. 1984) (reaffirming that the statutory “duties of [a] guardian
. . . to assert the rights and best interests of the incompetent person . . .
include[] the power to assert the incompetent’s personal right to refuse life
sustaining treatment” (quotation omitted)); see also Rasmussen by Mitchell v.
Fleming, 741 P.2d 674, 687, 688, 689 (Ariz. 1987) (en banc) (concluding that
statute providing that “a guardian may give any consents or approvals that
may be necessary to enable the ward to receive medical or other professional
care, counsel, treatment or service” gave the guardian “the implied, if not
express, statutory authority to exercise [the ward’s] right to refuse medical
treatment,” including placing do not resuscitate or hospitalize orders on ward’s
medical chart (quotation omitted)).
8
In addition to RSA 464-A:25, I(d)’s broad and unqualified grant of
authority as to medical treatment other than the four specifically excluded
treatments, we find RSA 464-A:25, I(e) instructive in concluding that end of life
decisions are included in a guardian’s power under RSA 464-A:25, I(d).
Subparagraph (e) provides:
If a ward has previously executed a valid living will, under
RSA 137-J, a guardian shall be bound by the terms of such
document, provided that the court may hold a hearing to interpret
any ambiguity in such document. If a ward has previously
executed a valid durable power of attorney for health care, RSA
137-J shall apply.
RSA 464-A:25, I(e).
As defined in RSA 137-J:2, XIV, a living will is:
a directive which, when duly executed, contains the express
direction that no life-sustaining treatment be given when the
person executing said directive has been diagnosed and certified in
writing by the attending physician or APRN to be near death or
permanently unconscious, without hope of recovery from such
condition and is unable to actively participate in the decision-
making process.
RSA 137-J:2, XIV (2015).
By binding the guardian to the ward’s express directives as to life-
sustaining treatment, RSA 464-A:25, I(e) implies that the guardian has the
authority to make decisions in that regard on behalf of the ward. The Illinois
Supreme Court reached a similar conclusion with respect to a provision of the
Illinois Powers of Attorney for Health Care Law that would have allowed the
ward to “authorize her agent to terminate the food and water that sustain her”
and a Probate Act providing that, if a ward has such a healthcare agency in
force, “the guardian has no power, duty or liability with respect to any health
care matters covered by the agency.” In re Estate of Longeway, 549 N.E.2d at
298 (quotation and ellipsis omitted)). The court reasoned:
Logically, the legislature would not have prohibited the guardian
from usurping the authority of an agent acting under a health care
power of attorney, if the guardian could not have exercised the
agent’s powers in the first place. Thus, if only an agent can
terminate food and water under a power of attorney, the Probate
Act would not have precluded a guardian from interfering with this
prerogative, unless the guardian also would have this power.
Id.
9
For the foregoing reasons, we conclude that the general power to give or
withhold consent to medical treatment under RSA 464-A:25, I(d) includes the
power to withdraw life-sustaining treatment in appropriate circumstances. We
now turn to the question whether a guardian must obtain prior court approval
to exercise that power.
As other courts addressing end-of-life decision-making for incompetent
patients have observed, “[c]ourts are not the proper place to resolve the
agonizing personal problems that underlie these cases,” Matter of Jobes, 529
A.2d 434, 451 (N.J. 1987), and “the judicial process [is] an unresponsive and
cumbersome mechanism for decisions of this nature,” Matter of Welfare of
Colyer, 660 P.2d 738, 746 (Wash. 1983) (en banc); see also Matter of
Guardianship of L.W., 482 N.W.2d 60, 75 (Wis. 1992) (citing Matter of Welfare
of Colyer and Matter of Jobes). The Kentucky Supreme Court has concluded
that “it would be logistically impossible to require court approval of every
decision to withhold or withdraw life-prolonging treatment.” Woods v. Com.,
142 S.W.3d 24, 49 (Ky. 2004).
We agree with the view that the legal process is a “cumbersome
mechanism” for resolving end-of-life decisions in circumstances like those
presented here. Matter of Welfare of Colyer, 660 P.2d at 746. Moreover, we
conclude that under the plain language of RSA 464-A:25, I(d), judicial
involvement is not required. As L.N. points out, RSA 464-A:25, I(d) explicitly
lists “four specific categories of treatment” that require prior approval by the
probate division, but “makes no mention whatsoever of life-sustaining
treatment, life support, etc.” Therefore, L.N. argues, requiring prior court
approval for the cessation of life-sustaining treatment would impermissibly add
words to the statute that the legislature did not see fit to include. See Rogers,
171 N.H. at 743. We agree.
A requirement that a guardian seek prior court approval for any and all
end-of-life decisions for the ward cannot be found in the guardianship statute,
and we will not rewrite the statute to include such a requirement. See id.
Furthermore, the inclusion of a prior approval requirement for four specific
types of treatment strongly indicates that the legislature did not intend to
require prior approval for any other procedures not mentioned. See Appeal of
Cover, 168 N.H. 614, 622 (2016) (rejecting interpretation of statute that would
both add words to the statute and “contravene the familiar axiom of statutory
construction, expressio unius est exclusio alterius: Normally the expression of
one thing in a statute implies the exclusion of another” (quotation omitted)).
We note that the Supreme Court of Minnesota construed similar statutory
language as “confirm[ing] that the Legislature did not intend that guardians
come back to court to receive specific court permission to consent to the
removal of a ward’s life support.” In re Guardianship of Tschumy, 853 N.W.2d
at 744.
10
The plain language of the statute supports the opposite conclusion.
This is so because where the Legislature intended specific court
approval for certain types of treatment, the Legislature expressly
provided for that approval in the statute. See Minn. Stat. § 524.5–
313(c)(4)(i) (requiring specific court approval “for psychosurgery,
electroshock, sterilization, or experimental treatment of any kind”).
Id.
As to what might constitute “appropriate circumstances” under which a
guardian could authorize withdrawal of life-sustaining treatment for a ward, we
note that most jurisdictions addressing the issue of end-of-life decision-making
for incompetent patients have employed a substituted judgment approach, a
best interests approach, or some combination or variation of the two. See In re
Estate of Longeway, 549 N.E.2d at 299; see also Matter of Conroy, 486 A.2d
1209, 1231-32 (N.J. 1985) (adopting, in addition to a substituted judgment
approach, “two ‘best interests’ tests—a limited-objective [and] a pure-objective
test”). “Under substituted judgment, a surrogate decisionmaker attempts to
establish, with as much accuracy as possible, what decision the patient would
make if he were competent to do so.” In re Estate of Longeway, 549 N.E.2d at
299. Under the best-interests approach, “a surrogate decisionmaker chooses
for the incompetent patient which medical procedures would be in the patient’s
best interests.” Id. The trial court in this case appears to have implemented a
substituted-judgment approach, denying the motion to authorize removal of life
support on the ultimate ground that it did “not find that [L.N.] — under the
facts in this case — would choose to have life support removed and a natural
death process to occur.”
We need not decide which standard might apply in a case where the
guardian’s decision is challenged and court involvement in the decision is
warranted; in this case, the trial court noted that “no person spoke in
opposition to the removal of life support” at the October 17 hearing. We leave
for another day the question whether substituted judgment, best interests, or
some other standard applies to a guardian’s decision to withhold life-sustaining
treatment from a ward. We have recognized, however, that “a guardian stands
in a fiduciary relationship to his ward,” In re Guardianship of Richard A., 124
N.H. 474, 478 (1984); see also Wentworth v. Waldron, 86 N.H. 559, 561 (1934),
and we note that the established standards governing fiduciaries apply to
guardians in cases like the one before us. For instance, a guardian, as a
fiduciary, has the duty “to act primarily for [the ward’s] benefit,” Appeal of
Concerned Corporators of Portsmouth Sav. Bk., 129 N.H. 183, 203 (1987)
(quotation omitted), and in good faith, see id. at 204 (noting that a fiduciary
relationship “exist[s] in cases where there has been a special confidence
reposed in one who, in equity and good conscience, is bound to act in good
faith and with due regard to the interests of the one reposing the confidence”
(quotation omitted)). As observed by the California Court of Appeals, the good
faith standard in this context “precludes a decision affected by a material
11
conflict of interest” and “requires the [guardian] to consider the available
information relevant to the [ward’s] best interests.” Conservatorship of
Drabick, 245 Cal. Rptr. at 861. In sum, “[t]he standard of care [required of a
fiduciary] is a high one indeed.” Appeal of Concerned Corporators of
Portsmouth Sav. Bk., 129 N.H. at 203.
The Rudman Center suggests that, under the approach we adopt today,
“[e]very guardian of the person would have power to authorize withdrawal of life
support, regardless of the reason for the guardianship, and even in cases
where a ward has no current medical issues and has expressed no preferences
with respect to life support,” a proposition that “seems absurd.” We observe
that many courts resolving cases similar to the one now before us have
expressly or implicitly limited their holdings to specific factual scenarios or
required specific safeguards on the guardian’s decision-making. Generally, the
limitation restricts the holding at issue to patients/wards in a persistent
vegetative state and the safeguards require the statement of two or more
physicians confirming that the patient/ward is in such a state and has “no
reasonable chance of recovery to a cognitive and sentient life.” Matter of
Guardianship of L.W., 482 N.W.2d at 72; see, e.g., id. at 63, 72, Matter of
Jobes, 529 A.2d at 448; In re Fiori, 652 A.2d 1350, 1351 (Pa. Super. Ct. 1995).
We decline to impose any such limitation where the legislature has not
done so. See Rogers, 171 N.H. at 743 (we will not add words to a statute that
the legislature has not seen fit to include). We acknowledge that in some cases
from other jurisdictions, the court-imposed limitations achieved the explicit
purpose, or had the incidental effect, of avoiding potential constitutional
issues. See, e.g., In re Estate of Longeway, 549 N.E.2d at 301 (noting that “if
the surrogate decisionmaker is a court-appointed guardian, procedural due
process questions involving deprivation of life may arise”); Woods, 142 S.W.3d
at 42 (limit imposed “[t]o preclude the possibility of . . . an unconstitutional
application” of the statute). In the instant case, neither L.N. nor either amicus
raised or briefed any constitutional issue. However, when two doctors testified
that L.N. shows only basic brainstem function and has no reasonable hope of
recovery, the conditions other courts have imposed appear to be met. To the
extent the trial court made factual findings to the contrary, we address that
issue below. We decline to address potential constitutional issues that may
arise in future cases, particularly in the absence of briefing.
A guardian’s authority under RSA 464-A:25, I(d) is neither granted nor
exercised without safeguards. As the Washington Supreme Court reasoned:
In giving the guardian the authority to make . . . a judgment
[to refuse life-sustaining treatment for the ward], we are aware of
the danger that a guardian might act on the basis of less than
worthy motives, i.e., an interest in the incompetent’s estate or a
desire to alleviate the financial burden of the life sustaining
12
treatment. We believe, however, that safeguards exist within the
laws controlling guardianships which protect against such dangers
without requiring routine court intervention in the termination
decision itself. For example, a guardian of an incompetent is
appointed by the . . . court and is at all times under the general
direction and control of the court.
Matter of Welfare of Colyer, 660 P.2d at 747; cf. RSA 464-A:4 (2018) (detailing
procedure for court appointment of guardian of incapacitated person) :35
(2018) (requiring guardian of the person to file annual report with court).
A guardian’s decision to remove life support would also require
implementation by medical personnel, who operate under their own set of legal,
as well as professional and ethical, constraints. See, e.g., RSA ch. 329 (2017 &
Supp. 2019) (regarding the regulation of physicians and surgeons). As the
Supreme Court of New Jersey noted:
Physicians and other health-care personnel are under an
ethical, moral, and legal duty to act in good faith and not to deviate
from approved medical standards. Physicians who do not adhere
to these rules and standards open themselves to potential civil and
criminal liability. This fear of liability is substantial, see, e.g., In re
Barber, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (Cal.Ct.App.
1983) (Two doctors who acceded to the requests of family of patient
in persistent vegetative state by removing his respirator and
feeding tube were charged with murder and conspiracy to commit
murder.), and should operate to ensure that the procedures we
establish today will be followed.
Matter of Jobes, 529 A.2d at 448 n.15.
As the foregoing indicates, we are not alone in rejecting the proposition
that a guardian must in all cases seek court approval before authorizing the
withdrawal of life support from the ward. See, e.g., Rasmussen, 741 P.2d at
679-80, 691 (concluding, in case addressing guardian’s authority to refuse
medical treatment, including resuscitation, for a ward in chronic vegetative
state, that “[w]here . . . all affected parties concur in the proposed plan of
medical treatment, court approval of the proposed plan of medical treatment is
neither necessary nor required”); Woods, 142 S.W.3d at 50 (concluding that “[i]f
the surrogate, as here, is a judicially-appointed guardian, and the physicians,
family and ethics committee agree with the guardian’s decision, there is no
need to seek court approval”); In re Fiori, 652 A.2d at 1352 (holding “that no
legal proceedings are necessary in the great majority of cases involving the
termination of life sustaining treatment to persons in [the instant patient’s]
condition,” namely, a persistent vegetative state); Matter of Welfare of Colyer,
660 P.2d at 747 (concluding that “the decision to refuse life sustaining
13
treatment is one that falls under the general powers of the guardian and does
not routinely require a court order”); Matter of Guardianship of L.W., 482
N.W.2d at 63 (holding that a court-appointed guardian “does not need the prior
authority of the court” to consent to withdrawal of medical treatment, including
artificial nutrition and hydration, to ward in a persistent vegetative state).
The foregoing does not imply, however, that court involvement is never
necessary or appropriate. Recourse to the probate division may be had, and
judicial intervention would be warranted, “[i]f a disagreement arises among the
patient, family, guardian, or doctors, or if there is evidence of improper motives
or malpractice.” Matter of Jobes, 529 A.2d at 451; see also In re Guardianship
of Tschumy, 853 N.W.2d at 748 (clarifying that nothing said in the “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”).
We conclude that the general power to give or withhold consent to
medical treatment under RSA 464-A:25, I(d) includes the power to withdraw
life-sustaining treatment, in appropriate circumstances, without prior court
approval. We reverse the trial court’s legal conclusion to the contrary. The
trial court found that “[a]t the October 17, 2018 hearing, no person spoke in
opposition to the removal of life support.” Under our interpretation of RSA
464:25, I(d) set forth above, we conclude that where there was no disagreement
among the guardian, L.N.’s attorney, or the Hospital as to the proper course of
action, the trial court’s involvement in the decision was neither necessary nor
warranted.
We acknowledge the Rudman Center’s observation that “the parties
invited and acquiesced to the court’s” involvement. We will not, however, fault
the guardian for seeking guidance from the court, and are not persuaded by
the Rudman Center’s suggestion that L.N. “[a]rguably . . . waived” certain
issues through such acquiescence. Cf. Conservatorship of Drabick, 245 Cal.
Rptr. at 845 (noting that “it would be perverse to hold that an otherwise lawful
course of action has been frustrated simply because the parties came to court
in advance to obtain some certainty about their rights and obligations”).
B. The Guardian’s Authority in this Case
We have concluded that the trial court erred as matter of law when it
ruled that the statutory authority of a guardian over the person “does not
include the authority to remove a ward from life support without Court
approval.” We now examine the trial court’s rulings in light of our
interpretation of RSA 464-A:25, I(d).
The trial court found that L.N. was incapable of exercising the right,
among others, to “[r]efuse or consent to medical or other professional care,
14
counseling, treatment or service, including the right to be admitted or
discharged from any hospital or other medical institution providing such at the
lawful direction of the guardian of the person.” The court therefore granted the
guardian the “right and authority to determine if refusal should be made or
consent should be given to any medical or other professional care, counseling,
treatment, or service,” subject to the statutory limitations on placement in the
New Hampshire Hospital or similar state institution, and consents to
psychosurgery, electroshock therapies, sterilization, or “other experimental or
extraordinary treatment or procedure.” In addition, the order appointing the
guardian provided that “[t]o the extent not otherwise encompassed within the
foregoing, the guardian of the person shall have all of the rights, powers and
authorities set forth in RSA 464-A:25.”
Without more, the foregoing constitutes a general grant of authority that
includes the authority under RSA 464-A:25, I(d) to withdraw life-sustaining
treatment in appropriate circumstances. The guardianship order also,
however, preliminarily withheld the authority to remove life-sustaining
treatment pending a “further hearing . . . to address that issue.” (Bolding
omitted). We will assume, without deciding, that the court’s authority to limit a
guardian’s powers under RSA 464-A:25, II includes such authority to
preliminarily withhold a power otherwise granted under RSA 464-A:25, I(d), so
that the court may hear evidence to determine whether limiting that power
would be “desirable for the best interests of the ward.” RSA 464-A:25, II; see
Salesky, 157 N.H. at 704 (noting that “[t]he only limitation upon the probate
court’s authority to impose additional duties upon a guardian is that the duties
be ‘desirable for the best interests of the ward’”).
It appears, however, that the trial court neither held the hearing, nor
utilized the evidence, for that purpose; rather, the court appears to have acted
throughout the proceedings on the erroneous premise that the guardian
required its prior approval to discontinue life support. For instance, the court
scheduled the expedited hearing to address whether the guardian “should be
awarded authority to remove life-sustaining treatment.” (Emphasis added.)
Thereafter, the court explicitly stated that the statutory authority of a guardian
over the person “does not include the authority to remove a ward from life
support without Court approval.”
The court never made a finding that limiting the guardian’s power to
terminate life support would be “desirable for the best interests of [L.N.],” RSA
464-A:25, II (emphasis added). Rather, using a substituted judgment
approach, the court purported to withhold authority from the guardian to
terminate L.N.’s life-sustaining treatment because it did “not find that [L.N.] —
under the facts in this case — would choose to have life support removed and a
natural death process to occur.” Ultimately, then, in proceeding under the
erroneous legal conclusion that RSA 464-A:25, I(d) did not empower any
guardian to remove a ward’s life support without prior court approval, the
15
court did not limit the powers of the particular guardian in this case under
RSA 464-A:25, II.
Because any limitation on the guardian’s RSA 464-A:25, I(d) authority
after the October 17 hearing was not supported by the statutorily-required
finding that it was “desirable for the best interests of [L.N.],” RSA 464-A:25, II,
we vacate that limitation. Without that limitation, the guardianship order’s
grant of the “right and authority to determine if refusal should be made or
consent should be given to any medical or other professional care, counseling,
treatment, or service” constitutes a general grant of authority that includes the
authority to withdraw life-sustaining treatment in appropriate circumstances.
Accordingly, the guardian “may give any necessary consent or approval to
enable [L.N.] to receive medical or other professional care, counsel, treatment,
or service or may withhold consent for a specific treatment,” including life-
sustaining treatment, but excluding “psychosurgery, electro-convulsive
therapy, sterilization, or experimental treatment of any kind,” without prior
court approval. RSA 464-A:25, I(d).
The guardian must make any such decision in good faith and, as
specified in the guardianship order, “[t]he guardian will share all medical
information with [L.N.’s close friend, G.H.] and will consult with her on major
medical decisions,” including the removal of life support. (Bolding omitted).
The ultimate decision-making authority, however, resides in the guardian. If
the Hospital, any physician, or any other interested person challenges the
guardian’s decision, recourse may be had to the circuit court probate division.
Otherwise, except with respect to any reporting or accounting required under
the guardianship statute, see, e.g., RSA 464-A:35, :36 (2018), no further
judicial involvement is necessary. Cf. Conservatorship of Drabick, 245 Cal.
Rptr. at 860 (directing that “further proceedings will be necessary only if the
conservator chooses to seek approval by pursuing his petition or if another
interested person challenges his decision”).
Finally, although we reverse the trial court’s decision for legal error, we
address a factual finding — challenged on appeal — that might appear to
contradict one of the premises upon which we declined to consider any
constitutional issues in this case. Specifically, we noted that the conditions
other courts have imposed to avoid constitutional issues appear to be met in
this case, where two doctors testified that L.N. shows only basic brainstem
function and has no reasonable hope of recovery.
In its October 22 order, however, the trial court found “that a question
remains at this time as to whether there is likelihood that [L.N.] would regain
an ability to react to her environment, communicate, or have any degree of
independent function.” The Hospital argues that this finding is plainly
erroneous and was “based upon an impermissible lay interpretation of [L.N.’s]
neurology medical records.” Although the severity and permanence of L.N.’s
16
condition is certainly relevant to the decision to withdraw life-sustaining
treatment, we find it unnecessary to determine whether the trial court’s factual
finding was plainly erroneous. More than a year has passed since the court
made that finding. Additional medical information as to L.N.’s condition and
prognosis presumably has become available in the intervening time. The
guardian will undoubtedly consider that additional medical information in
making any decision under RSA 464-A:25, I(d). See id. at 861 (noting that the
good faith standard in this context “requires the conservator to consider the
available information relevant to the conservatee’s best interests”).
Order denying authority to remove life
support reversed; order appointing
guardian vacated in part.
BASSETT and DONOVAN, JJ., concurred; HANTZ MARCONI, J.,
concurred in part and dissented in part.
HANTZ MARCONI, J., concurring in part and dissenting in part. I do not
disagree that the general grant of authority contained in RSA 464-A:25, I(d) can
be construed to encompass the authority to remove life-sustaining medical
treatment in appropriate circumstances, though the trial court’s alternative
construction is perhaps more understandable when one considers that it was
offered in response to a motion to “grant authority to . . . remove life supp[ort].”
(Capitalization and bolding omitted; emphasis added.) In addition, I agree that
the trial court’s statement in its order granting the guardianship that “[t]he
guardian does NOT have the authority to remove life sustaining treatment”
cannot be read as a limitation imposed pursuant to the court’s power under
RSA 464-A:25, II. (Bolding omitted.) However, given that the trial court could
have limited the guardian’s authority to consent to the removal of life-
sustaining treatment pursuant to paragraph II, and may well have elected to do
so if it had the benefit of the construction of paragraph I(d) that this court has
articulated today, I would remand this matter so that the circuit court may
have an opportunity to consider whether limiting the guardian’s power to
consent to the removal of life-sustaining treatment would be “desirable for the
best interests of the ward.” RSA 464-A:25, II.
17