DocketNumber: No. 96-P-1383
Citation Numbers: 41 Mass. App. Ct. 298
Judges: Perretta
Filed Date: 9/17/1996
Status: Precedential
Modified Date: 6/25/2022
Pursuant to the motion of the guardian for
the ward, Elma Mason, a Probate Court judge made a
1. The facts. Elma Mason is seventy-seven years of age and suffers from numerous serious medical conditions: congestive heart failure, anemia, insulin dependent diabetes mellitus, reflux, pulmonary hypertension, renal insufficiency, psychotic depression and mild dementia, and, as most recently contracted, a serious blood infection. There is no dispute that Elma Mason is mentally incompetent. According to Joseph, he has been his mother’s companion and caretaker for between seven to ten years, and there is documentary evidence showing that he was appointed her temporary guardian on February 22, 1996.
Although Joseph’s appointment as temporary guardian had expired, he made no effort at renewal until sometime in late June or early July, when MGH sought the appointment of a guardian ad litem to investigate and report to the Middlesex Probate Court on the issue who should be appointed as the ward’s guardian.
Two weeks after his appointment, the guardian ad litem filed his report in which, after investigation, he concluded: “The G.A.L. cannot recommend that Joseph Mason be named as guardian of his mother, but believes that if a suitable person is found they will need very clear authority from [the] Court to be able to limit the way in which Mr. Mason may attempt to undermine their authority or to interfere with the care to be provided to Elma Mason.”
Based upon the guardian ad litem’s report, MGH moved for the appointment of a temporary guardian for Elma Mason and nominated Richard Ready, R.N., Esq. Joseph Mason opposed any action by the Middlesex Probate Court on the ground that his mother was a resident of Suffolk and not Middlesex County. The judge appointed Mr. Ready as temporary guardian of Elma Mason and ordered the case transferred to Suffolk County.
By the decree of temporary guardianship, Mr. Ready is authorized to make “all usual and customary” medical and placement decisions in respect to the ward. In addition, the decree also authorizes Mr. Ready to make “all decisions” regarding who visits the ward, when the visits shall occur, and whether the visits shall be supervised. He is also authorized to suspend visits to the ward “if necessary,” and he has “exclusive access to the ward’s medical record unless . . . [he] believes that it is in the ward’s best interest to authorize others to have access to the record.”
On or about August 22, MGH filed a “motion for . . . substitute judgment determinations” in the Suffolk Probate Court. A guardian ad litem was appointed to investigate and report on the issue of whether a substituted judgment determination calling for a “no code” order should be entered on Elma Mason’s medical charts. Counsel for the ward was also appointed. After the guardian ad litem filed his report, a
Based upon the evidence presented, which included the report of the guardian ad litem, medical affidavits, and the testimony of Elma’s physician and Joseph, the judge issued findings of fact on the relevant substituted judgment factors and concluded that Elma Mason was “to have a do not resuscitate order instituted regarding her care, and that she not undergo any futile invasive measures that would only serve to prolong her fife unnecessarily.” However, she is to continue “to be given usual and customary medical treatment and hydration and pain medication.”
2. The health care proxies. There are two health care prox
*301 “(a) A durable power of attorney is a power of attorney by which a principal, in writing, designates another as his attorney in fact and the writing contains the words, ‘This power of attorney shall not be affected by subsequent disability or incapacity of the principal,’ or ‘This power of attorney shall become effective upon the disability or incapacity of the principal,’ or similar words showing the intent of the principal that the authority conferred shall continue notwithstanding the subsequent disability or incapacity of the principal.
“(b) References in this chapter to the disability or incapacity of the principal shall mean the mental illness or other disability of the principal recognized under the General Laws.”
*302 “An agent shall have the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.
“After consultation with health care providers, and after full consideration of acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects, the agent shall make health care decisions: (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 interests.
“Notwithstanding any general or special law to the contrary, the agent shall have the right to receive any and all medical information necessary to make informed decisions regarding the principal’s health care, including any and all confidential medical information that the prinicpal would be entitled to receive.
“Health care decisions by an agent pursuant to a health care proxy on a principal’s behalf shall have the same priority over decisions by any other person, including a person acting pursuant to a durable power of attorney as would decisions by the principal, when competent, except as otherwise provided in the health care proxy or by specific court order overriding the proxy.”
Although the 1996 proxy was introduced in evidence at the
We will assume for purposes of decision that the Middlesex Probate Court judge had the 1993 proxy before her at the time of the appointment of Mr. Ready as Elma’s temporary guardian.
“The health care provider, the conservator for, or guardian of the principal, members of the principal’s family, a close friend of the principal, or the commissioner of public health may commence a special proceeding in a court of competent jurisdiction, with respect to any dispute arising under this chapter, including, but not limited to, a proceeding to:
(i) determine the validity of the health care proxy;
(ii) have the agent removed on the ground that the agent is not reasonably available, willing and competent to fulfill his or her obligations under this chapter or is acting in bad faith; or
*304 (iii) override the agent’s decision about health care treatment on the grounds that: the decision was made in bad faith or the decision is not in accordance with the standards set forth in section five.”
In the procedural circumstances of this case, it is reasonable to treat MGH’s complaint for the appointment of a temporary guardian for Elma as also seeking an override of Joseph’s decisions concerning her health care treatment. Based upon the report of the guardian ad litem, we conclude that the judge had ample basis for authorizing a person other than Joseph to make health care decisions on behalf of Elma.
As reported by the guardian ad litem, interviews with various health care providers who had worked with Elma and Joseph over the past five years revealed that they found Joseph to be of the view that he is the only person capable of implementing a suitable treatment program for his mother, he is “articulate, but is not a good listener,” he is “hostile toward” his mother’s caretakers and often behaves in a “belligerent or inappropriate manner toward them,” his decisions concerning his mother, although well-motivated, are not always sound, health care providers have declined to take on the mother as a client or patient because of Joseph’s behavior, he argues with health care providers, and attempts “to micromanage every aspect of his mother’s life and care,” he “has difficulty accepting the change in his mother’s health status and is experiencing a lot of denial about the deterioration in his mother the past year,” he is too “combative” to work with, and he does not have the “objectivity necessary to be the substitute decision maker for his mother.”
The guardian ad litem also spoke with Joseph. He described him as demanding and “displayjjng] signs of distrustfulness and paranoia.” He carries a portable tape recorder into which he dictates throughout the day, noting dates, times, and observations about his immediate surroundings, and he advised the guardian that he intended to hire a private investigator to delve into the guardian’s relationship with counsel for MGH.
These interviews led the guardian ad litem to report to the court: “Despite Elma Mason’s past expressed preference, the G.A.L. does not believe Joseph Mason is suitable to be appointed Temporary Guardian. Mr. Mason is unable to
This information shows that Joseph refuses to give “full consideration of acceptable medical alternatives regarding [Elma’s] diagnosis, prognosis, treatments and their side effects” and that he is incapable of making health care determinations based upon a true assessment of Elma’s best interests. Such a showing is more than sufficent to warrant a conclusion that Joseph, as Elma’s health care agent, had not made and would not make decisions in accordance with the standards set out in G. L. c. 201D, § 5. The Probate Court judge, therefore, was correct in overriding all Joseph’s current and future medical decisions for Elma, see G. L. c. 20 ID, § 17, and appointing a suitable temporary guardian to act on her behalf. .
3. The “no code" determination. “Generally, ‘no code’ orders do not require judicial oversight. See Matter of Dinnerstein, 6 Mass. App. Ct. 466, 474-475 (1978). Cf. Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 423 (1986) . . . Courts should not be in the business of reviewing uncontroversial ‘no code’ cases simply because doctors and hospitals seek to shield themselves from liability.” Care & Protection of Beth, 412 Mass, at 193. We do not regard this case as one where MGH simply seeks to shield itself from liability. Rather, it is a situation complicated by the fact that the “no code” order was obtained over the objection of Joseph who holds health care proxies of questionable validity. We think that “[i]n these circumstances, a judicial ‘no code’ determination is appropriate.” Id. at 194. See also Matter of Spring, 380 Mass. 629, 636-637 (1980).
As earlier noted, when MGH sought a “no code” order, the Suffolk Probate Court judge appointed a guardian ad litem as well as counsel for the ward and thereafter conducted
Throughout the proceedings Joseph again asserted that he had the exclusive right under the health care proxies to make all decisions concerning the medical treatment to be provided his mother. The judge repeatedly advised him that the issue of his agency under the proxies had been decided previously and that the sole issue before her was whether a “no code” order would be entered on his mother’s medical chart.
At the evidentiary hearing, Joseph’s only refutation of the medical evidence was his testimony challenging the past medical treatment given his mother by various physicians at MGH. His opposition to the “no code” order was based solely upon his belief that his mother’s current condition, attendant suffering, and poor prognosis, has been brought about by the painkillers and sedatives given her and that if these medications were stopped, his mother would improve and there would be no need even to consider a “no code” order.
The judge accepted the testimony of the ward’s treating physician who stated that the ward suffers from multiple system failure; that the disputed medications were administered only when various necessary medical procedures, such as dialysis, were performed, and then only for the purpose of making her calm and comfortable; that the dosages of the medications were set at levels carefully balanced to prevent any allergic reaction; and that although the ward had not received any disputed medication within six days of the hearing, her condition had not improved. The physician further testified that the ward’s underlying organ failures are not likely to be cured and that she will continue to decline and suffer the physical trauma of the invasive measures of resuscitation, should such an attempt be made.
In addition to making findings on the medical evidence, the judge considered other factors relative to a substituted judgment determination, including the facts that the ward’s religious convictions and beliefs did not have any impact on any decision concerning her treatment program and that the
On appeal, Joseph’s arguments continue to be that he has the sole right to make medical decisions for his mother and that it would be her wish, based upon his contention that her condition would improve if her medication was stopped, to take any and all measures to resuscitate her should her cardiopulmonary system suffer another failure. There is no basis for disturbing the judge’s findings.
The temporary guardianship decree, the substituted judgment decision, and the entry of the “do not resuscitate” order are affirmed.
So ordered.
See Matter of Dinnerstein, 6 Mass. App. Ct. 466, 469 n.3 (1978).
Because the appointment expired, as matter of law, on May 1, 1996, we need not consider whether Joseph’s failure to comply with the notice requirements of Rule 29B of the Probate Court Rules (as amended effective February 1, 1982) invalidated the appointment.
These proceedings were commenced in the Middlesex Probate Court on the basis of Joseph’s representations that the ward resided in Cambridge, presumably the Youville Hospital where she had resided near the time of Joseph’s appointment as temporary guardian in February.
Although the hearing was electronically recorded, the expedited schedule for the appeal did not allow for the preparation of a transcript. However, the tapes of that hearing were transmitted to the court with the original record.
General Laws, c. 201B, § 1, inserted by St. 1981, c. 276, § 2, provides:
A health care agent, as defined by G. L. c. 20 ID, § 1, inserted by St. 1990, c. 332, § 1, is “an adult to whom authority to make health care decisions is delegated under a health care proxy.”
Although there are serious unresolved questions concerning the execution of each of the proxies, we assume for purposes of decision that they are valid.
Notwithstanding this assumption, we think it unlikely that the proxy was presented to the judge. As noted in the report of the guardian ad litem who investigated the issue of whether a temporary guardian should be appointed, which report was relied upon the judge in making her decision: “Mr. Mason claims to have been designated as his mother’s health-care proxy, although he had not produced the forms for the G.A.L. as of the writing of this report, despite multiple requests from the G.A.L. that Mr. Mason provide those forms.”
The ward has two brothers and three sons. Joseph is not close to his brothers, and the record indicates that he has sought restraining orders to keep one brother away from the mother, that he never notified them of his earlier appointment as temporary guardian, see note 2, supra, and that he did not volunteer their addresses to the guardians ad litem in these proceedings so that they could be interviewed.
The judge also ordered that the temporary guardian was to meet with Joseph weekly to review his mother’s medical status and to keep her family informed of her prognosis and the nature of her medications.