CHAPTER 21

THE INCAPACITATED CLIENT:
PERSONAL DECISION MAKING
Robert H. Weber, Esq.

INTRODUCTION
Most adults enjoy the freedom to exercise free choice when faced with im-portant life decisions. They are free to consult with friends and relatives before they decide, but the ultimate selection of a plan of action remains with the indi-vidual. The law assumes that all adults possess the capacity to make decisions. Competent adults are even free to make irrational, sometimes strange, decisions without interference. Nevertheless, there are situations when a person's decision making ability is questioned. These situations involve questions about an individual's ability to control her property or money, or to make basic decisions about her personal affairs. Friends, family members, or persons or agencies acting as an "advocate" for the elderly person may identify a need to involve themselves in the elderly person's life decisions because they believe the person is making a poor decision, or simply acting in a way that is contrary to the wishes of the friend or family member. Also, medical professionals are carefully examining their patient's ability to participate in treatment decisions, and are seeking guardianships if the believe their patient cannot give informed consent. In addition many people are beginning to seek legal means to control their future medical treatment when their competence may be questioned. They want to appoint family members or other friends to make medical treatment decisions for them, but they want to provide guidance for the surrogate decision-makers.

Medical decision making is becoming increasingly complex as doctors are discovering new technologies and methods for keeping people alive. Many physicians wish to involve their patients in the medical process. Also doctors are increasingly aware of their liabilities for treating patients without obtaining informed consent. Harnish v. Children's Hospital Medical Center, 387 Mass. 152 (1982) (A surgical patient cannot be treated without giving informed consent to the treatment. Furthermore the physician has a duty to disclose all significant medical information to enable the patient to make an informed decision.) The law is developing different approaches to these issues, but the key questions re-main. How do we decide that a person is competent to control his life, and if a person cannot make life decisions, what processes do we use to make these im-portant decisions on his behalf? Also is there a way for a competent person to select an individual to make medical decisions on his behalf should the individ-ual become incompetent in the future?

How do we decide that an elderly person cannot choose to leave a hospital and return to his home of fifty years instead of going to a nursing home? How do we decide that a mentally ill adult should risk a potentially dangerous treat-ment rather than remain in the state mental hospital? Who should decide to re-move a feeding tube from a comatose person with little likelihood of regaining consciousness? How do we create a method to assist our families if they must make these decisions for incompetent family members?

In Massachusetts, the courts have consistently decided that all citizens have the right to make all personal decisions for themselves. This is a fundamen-tal right that is not easily diminished. Guardianship of Roe, Mass. Adv. Sh. (1981) 981 (Mentally ill person living outside of a hospital cannot be forced to ac-cept treatment with antipsychotic medication without a judicial finding of in-competence and a judicial substitute judgment decision.) Furthermore our courts have consistently held that only a judge, after a hearing, can decide that an indi-vidual is not competent to make medical decisions. Family members, friends or doctors do not have the legal authority to make these decisions. See Superintendent of Belchertown State School v. Saikewitz, 373 Mass. 728 (1977), Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) (Civilly committed mental patients have the same rights to participate in medical treatment decisions as non-hospitalized patients.)

Incompetent people cannot make appropriate decisions about life events. However the concept of incompetence is difficult to define and lacks meaning unless it is viewed in context. Legal competency is frequently confused with a clinical diagnosis of mental illness, mental retardation, Alzheimer's Disease, and other conditions affecting mental functioning, yet not all people with such conditions are legally incompetent. For example, a seriously mentally ill person may be legally competent to make many decisions about her life, al-though she may have problems making decisions about her need for treatment for her mental illness.
There is no generally accepted measure for determining competency.

Most clinical and legal experts agree that one must evaluate the decision-making capacity of the individual only after looking at the purpose for which the compe-tency is being evaluated. Some experts suggest that the proper method for eval-uating a person for competency is to explore the person's ability to gather infor-mation; his ability to evaluate the information; and, his ability to make and ex-press a decision. Herr, et al., LEGAL RIGHTS AND MENTAL HEALTH CARE, 32 (1983). Gutheil and Applebaum suggest three distinct elements of an indi-vidual's decision making that should be reviewed in order to determine the per-son's competency to make a decision. These include the individual's awareness of the nature of the his situation, including his level of impairment if any exists; his factual understanding of the issue or issues with which he must deal; and his ability to manipulate the information rationally in order to reach a decision on these issues. Gutheil and Applebaum, CLINICAL HANDBOOK OF PSYCHIATRY AND THE LAW p. 217 (1982). Also of significance may be the ability of the individual to appreciate the foreseeable results of alternative courses of action.

All individuals who are asked to evaluate an individual's competency, must develop an understanding of the nature of the decisions fac-ing the individual, the individual's capacity to gather and process information, his ability to communicate, his living situation, and the resources available to as-sist the person in making the decision. Furthermore, it is important to bear in mind that the law permits competent persons to make seemingly irrational deci-sions that may not be in their best interests. Lane v. Candura, 6 Mass. App. 377 (1978) (Elderly woman's decision to refuse removal of gangrenous leg upheld as competent decision against medical advice.) In addition, a person may be com-petent to make some decisions and incompetent to make others. Guardianship of Bassett, Mass. App. Ct. Adv. Sh. 1986 (1979) (Incompetent person is competent to handle small amounts of money.)

There are a number of legal steps that may be taken to protect the interests of an incompetent person. All of them result in serious a diminution of the legal rights and freedoms of the incompetent person, therefore it is important utilize the least restrictive means to protect the incompetent person. When choosing the proper legal approach the attorney must be aware of the type of decisions facing the in-dividual, the individual's degree of disability, the probable duration of the dis-ability, and the resources available to help the individual make life decisions. This chapter will describe some of the most common legal approaches that pro-vide alternative or supplemental assistance in decision making to protect the in-competent person.

GENERAL GUARDIANSHIP
Guardianship is the most common legal procedure that is utilized to pro-tect persons who are unable to care for themselves because of a mental disability. Guardianship is also the most comprehensive and most intrusive method for taking control of an incompetent person's affairs and may not be necessary in all cases. However, a guardian is needed in most cases when the per-son is incapable of providing informed consent to medical treatment. A person may only be placed under guardian-ship by a judge of the Probate and Family Court after all of the proper proce-dures required by G.L. c.201 are followed. In Massachusetts, a person may be placed under guardianship only if she is (1) "incapable of taking care of herself" by reason of mental illness (G.L. c.201 §6) or mental retardation (G.L. c.201 §6A); or "unable to make or communicate informed decisions due to physical in-capac-ity or illness" (G.L. c.201 §6B, added by St. 1990, c. 149, §2). Old age or "infirmity" in itself is not a valid legal basis for guardianship in Massachusetts.

Most guardianships of older persons are granted on the basis of mental illness. However, many instances of mental dysfunction have physical or neurological causes, such as stroke, head in-jury, dementia, coma and Alzheimer's Disease, and are not commonly perceived as aspects of mental illness. Many of these conditions are associated with mental dysfunc-tion, and the American Psychiatric Association considers them as forms of mental illness (See The Diagnostic and Statistical Manual IV, 4th ed. 1994). Given the legal and practical context of guardianship law and proceedings, the precise etiology and clinical diagnosis of the individu-al's mental dysfunction is seldom seen as determinative by the court in its con-sideration of whether a person suffers from mental illness to the extent and in a manner mak-ing guardianship necessary. The court is generally more concerned with the individual's ability make the decisions required to meet his needs, than the nature and extent of the individual's mental illness.

The question of the diagnosis of a mental illness has become less significant, as the courts have responded to petitioners requests to make guardianship findings based on an individual's inability to "make or communi-cate informed decisions due to physical incapacity or illness" (G.L. c.201 §6B) to many individuals who can speak or write, but cannot do so competently. It should be pointed out, however, that aside from allowing consideration of plainly physical conditions that render an individual unable to make decisions and communicate, such as stroke or coma, as the basis for guardianship -- perhaps merely a clarification of prior law as applied by the courts ­ this section authorizes appointment of a full guardian for an individual who has the mental capacity to make informed decisions simply because he lacks physical capacity to communicate. This is a departure from prior law, as well as the law currently applicable to guardianship by reason of mental illness or men-tal retardation. Although it is clear from the legislative history that the provision was intended to deal with the situation of coma, many petitioners apply this standard to demented individuals who are confused about their needs, where the words are spoken clearly and are easy to understand, but the content of the speech is confused or lacks understanding. Petitioners state that they are using the language in section 6B because they do not want describe a formally competent person as mentally ill as this label upsets the family of the ward. Unfortunately this misuse of the law avoids any inquiry into the true nature of the ward's disability and any efforts to provide treatment that may reduce the need for the guardianship.

Guardianship is thus needed when an incompetent person requires assis-tance in making medical decisions, and the person has not properly designated an alternative decision-maker. Although it is common practice for treating physicians to consult with family members or close friends of an incompetent person when deciding to provide medical care, our courts have consistently held "No other procedure is available [other than guardianship] for determining that a patient lacks the capacity to make treatment decisions." Rogers v. Commissioner of the Department of Mental Health, supra at 497 and cases cited.

Guardianship requires the appointment of a family member, friend or other individual to look out for the best interests of the mentally disabled indi-vidual. Today guardians are being asked to make extremely complex decisions on behalf of their wards. Many of these decisions require the guardian to con-sider troubling questions about the ward's beliefs and desires regarding the qual-ity of life and the viability of controversial courses of medical treatment. Furthermore, guardians are required to consider the apparently irrational desires of their wards as part of the decision making process. Finally, the role of the courts in the guardianship process is rapidly changing. Judges are increas-ingly required to take an active role in the supervision of the guardians they ap-point. Decisions about extraordinary medical procedures require the judge to act as the decision-maker, leaving guardians little or no direct decision making responsibility.
Many physicians, family members and advocates believe that courts and judges are unwarranted intruders in the process. They believe that the personal decisions on behalf of disabled persons should be controlled as much as possible by the stated desires of the disabled person. Furthermore they believe that family and friends who are intimately familiar with the disabled person are in a better position to make these difficult decisions. Thus they are seeking alternative methods for providing decision-makers.

A guardianship proceeding is considered a benign procedure that will provide a disabled person with a guardian who will look out for his best inter-ests. It is important to keep in mind, however, that the person under guardian-ship suffers a substantial deprivation of his basic civil liberties. Unless the pro-bate court limits the powers of the guardian, the ward loses the right to make most important life decisions including: the right to consent to his own medical care, to contract, to vote, to manage his bank accounts, and other personal prop-erty, to spend his money, to associate with his friends, to choose to live in a nurs-ing home, to sell his property, and many other rights which we generally take for granted. The standards and procedures found in the guardianship statutes and cases recognize this significant loss of liberty and provide a certain amount of due process protection for the alleged incompetent person.

A person is presumed competent and can only be declared incompetent and placed under guardianship by a probate court after an adjudication of incompetency. G.L. c. 201 § 6 provides the statutory basis for guardianship of a mentally ill person. This section allows the probate court to appoint a guardian for a person who is '. . . unable to care for himself by reason of mental illness.' Guardianship of a mentally retarded person is described in G.L. c. 201 §6A. This section permits the granting of a guardianship for a person who is unable to care for himself by reason of mental retardation. Guardianship of an individual who is "unable to make or communicate informed decisions due to physical incapac-ity or illness" (G.L. c.201 §6B) is explicitly subject to the same procedural re-quirements as that of a mentally ill person, under §6. The procedures that are required in all three forms of guardianship are almost identical. This chapter will focus on the procedures that apply to a guardianship of a mentally ill or physi-cally incapacitated person, and will note the different requirements for a guardianship of a mentally retarded person where appropriate.

The petitioner has the burden of proving the existence of mental illness and the ward's inability to care for himself. The petitioner must be either a par-ent, two or more relatives or friends of the alleged mentally ill person, the Department of Mental Health, or a non-profit corporation whose charter allows it to act as guardian. The petition must be accompanied by a physician's certificate that describes in detail the nature of the person's mental illness. The Probate Court has created a new medical certificate. The new certificate requires the physician to describe in detail the diagnosis leading to the opinion that the ward is incapable of caring for himself by reason of mental illness or is unable to make or communicate informed decisions due to physical incapacity. The doctor must also describe the types of decisions that the ward has sufficient mental ability to make.

In cases where the person refuses to be examined by a physician the petitioner may want to file the petition along with a motion requesting the court to order the person to be examined by a physician. The motion should clearly state the basis for the guardianship peti-tion, and the need for a medical examination. The motion should include an affi-davit from an individual who is personally familiar with the respondent's cir-cumstances. The affidavit should describe the respondent's situation in detail including the potential harm that the respondent will suffer if the petition is not granted. In addition the affidavit should describe the petitioner's attempts to have the respondent examined by a physician.

For the guardianship of a mentally retarded person, the affidavit should also provide support for the finding that failure to appoint a guardian would cre-ate an unreasonable risk to his health, welfare and property, and that appoint-ment of a conservator under G.L. c.201 §16B would not eliminate such risk. Also, the petitioner must provide a clinical team report (rather than a physician's cer-tificate alone) that includes a certificate from a physician (but necessarily a psy-chiatrist), a licensed psychologist and a social worker (who probably should be licensed, for the protection of the respondent, although this is not specifically re-quired by the rule, which was written before the state licensed social workers) that states that the individual is unable to care for himself by reason of mental re-tardation.

The burden of proof is on the petitioner and there must be proof by a pre-ponderance of the evidence. Except for emergencies as described in G.L. c. 210, §14 (See section on temporary guardianships below) the alleged incompetent person should receive prior notice of the hearing. He also has the right to present evidence and examine witnesses, and the right to be present at the hearing. In some cases the respondent must be present at the hearing unless there is good cause for his absence. Except for cases where the petitioner is seeking the au-thority to admit the ward to a mental health facility or the authority to administer extraor-dinary medical treatment, defined below, the alleged incompetent person is not entitled to court appointed counsel, although some probate courts have adopted the practice of appointing counsel in any guardianship case involving a signifi-cant intrusion into the ward's affairs. In addition, many judges routinely appoint a guardian ad litem in all guardianship cases. The role of the G.A.L. is to investi-gate the facts and report to the court his recommendations for the proper plan of actions that is in the ward's best interest.

Before a person is placed under guardianship there must be a judicial finding that he is mentally ill. The guardianship statute does not define mental illness, and there is no modern guardianship case that addresses the question. The Department of Mental Health (in an earlier version of its regulations) defined mental illness as follows:
. . . For purposes of involuntary commitment and the determination of criminal responsibility, '-mental ill-ness' shall mean a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to rec-ognize reality or ability to meet the ordinary demands of life, but shall not include alcoholism.... (104 CMR 27.05 (1))
. . . For the purpose of voluntary or conditional volun-tary- admission to mental health facilities in the Commonwealth, any degree of severity of a mental disorder including alcoholism may qualify a person for admission to a mental health facility at the discre-tion of the superintendent or other head of the facility or his designee when it is determined that such ad-mission is necessary or appropriate. (104 CMR 27.05 (2))

Obviously these definitions are written for specific purposes that may not apply directly to guardianship proceedings; however, they do provide guidance. A guardian seeking the authority to admit his ward to a mental health facility over the ward's objection must apply the definition written for the purpose of involuntary commitment. See discussion below. Although neither of these definitions apply directly to a guardianship situation, for the purpose of determining incompetence sufficient to warrant the appointment of a guardian the degree of severity of the mental disorder must be such that the alleged mentally ill person is unable to care for himself. Clearly this requires a person to be suffering from a recognized and identified mental disorder before a guardianship may be allowed. Mere irra-tional or idiosyncratic behavior is not sufficient evidence of mental illness to re-quire the appointment of a guardian.

The person must be ". . . unable to care for himself by reason of mental ill-ness." The petitioner must prove and the probate court must find that the person cannot act or think for himself regarding his personal health, safety, and general welfare. It is not sufficient to show that the person's lifestyle does not meet the approval of his family and friends. A street person who is able to fend for himself may be deserving of our sympathy and support, but he probably does not need a guardian.

Furthermore, a guardianship may be tailored to meet the needs of the mentally ill person. The ward may be competent to control some aspects of his life, while unable to protect himself in other areas. For example a person may be able to manage a budget that will provide for his daily living needs, but become confused and unable to make decisions regarding large investments. This indi-vidual may require a limited guardianship that permits him to handle small amounts of money. Many mentally ill persons cannot make medical decisions for treatment of their mental illness at the same time that they are clearly capable of making decisions about general medical care and place of residence. Also per-sons under a general guardianship lose the right to vote. G. L. c. 51 §1. A person who requires a guardian for some specific purposes may be able to competently exercise his right to vote. The petitioner or an advocate acting on the respondent's behalf must specifically request all limited guardianships. The burden of justifying a limited guardianship is on the petitioner, or advocate on his behalf, however. The new medical certificate described above should provide information regarding the wards ability to make some life decisions, and provide support for a limited guardianship. However, the court will grant a general guardianship unless there is a request or statement of special justifica-tion for the limited guardianship.

A general guardianship is proper when circumstances require that the ward be placed under the total control of his guardian. See Fazio v. Fazio, 378 N.E.2d 951 (1978); Lane v. Candura, 376 N.E.2d 1232 (1978); Guardianship of Lawrence Allen Bassett, 38S N.E.2d 1024 (1979).) Unless he is seeking the author-ity to admit his ward to a mental health facility, the petitioner must prove his case by a preponderance of the evidence. This means he must prove that it is more likely than not that an individual is unable to care for himself by reason of mental illness. This is usually accomplished by presenting evidence of the individual's past activities that have placed him at risk or have caused him actual harm.

The probate court judge should only act after ". . . carefully considering the evidence and entering specific findings indicating those factors that persuade him that a guardianship is needed." In the Matter of Guardianship of Richard Roe, 111, 421 N.E.2d 40 (1981). The alleged mentally ill person must receive seven days notice of the time and place of the hearing; furthermore, the "heirs" of the alleged mentally ill person, (that is, the persons who would inherit his estate were he then to die intestate), including the husband or wife, are entitled to notice. G.L. c. 201, §7. The Veterans Administration is also required to receive notice if the ward is receiving or is eligible for V.A. benefits. Although many courts attempt to have the proposed ward present at the hearing, this is only required in cases where the guardian is seeking the authority to admit the ward to a mental health facility, in which case ". . . the court shall require the at-tendance of the alleged mentally ill person . . . unless the court finds that there ex-ists extraordinary circumstances requiring his absence, in which event the at-ten-dance of counsel shall suffice." G . L c. 201, § 6. Circumstances that may cause the person to be excused include the individual's request to be excused or a very serious psychotic condition that requires the person to be physically restrained.

Although the alleged mentally ill person is not entitled to court-appointed counsel in most guardianship cases, the Supreme Judicial Court has determined that a guardian ad litem (GAL) must be appointed to represent the interests of the ward in cases involving the administration or withholding of certain kinds of medical treatment which are considered extraordinary. These cases include authorization to administer antipsychotic medication, a request to sterilize the ward, a request to authorize or withhold life-sustaining medication or other treatment, and a request to enter a "no code" order (authorizing medical person-nel not to initiate resuscitation procedures in the event of a medical emergency) have each required the appointment of a GAL. (See Superintendent of Belchertown State School v. Saikiewitz, 370 N.E.2d 417 (1977); and In The Matter of Mary Moe, 385 Mass. 555 (1982).) The court has stated that the GAL in such circumstances must be an advocate for the alleged mentally ill person and ac-tively oppose the position of the petitioner. However, the Probate and Family Court and the Committee for Public Counsel Services have agreed that the ap-pointment of a GAL to act as an advocate really requires the appointment of counsel for the ward. Therefore, in all cases involving the administration of ex-traordinary medical treatment it is the policy of all courts to appoint counsel for the ward. In addition, in cases involving the authority to admit to a mental health facility the ward is entitled to receive court appointed counsel. See G.L. c. 201 §6.

Many judges appoint a GAL to investigate the circumstances surrounding the petition and file report with the court. This independent investigator is usu-ally an attorney although some courts will appoint a physician or social worker in cases that require special expertise. This type of GAL will gather all of the rel-evant facts in the case and present them to the court in the form of a written re-port. The report will also contain the GAL's recommendations. The report is usually admitted into evidence and the GAL is subject to cross examination.

GUARDIANSHIP WITH AUTHORITY TO ADMIT
If the incompetent person is so severely disabled that he requires treat-ment in a mental health or retardation facility the petitioner must seek special au-thority from the probate court to admit the ward. A general guardian does not have the inherent authority to sign a voluntary admission form to a mental health or retardation facility. The guardianship statues provide:
(b) No guardian so appointed shall have the author-ity to cause to admit or commit (the ward) to a mental health or retardation facility unless the court specifi-cally finds the same to be in the best interests of such person and so specifically authorizes such admission or commitment by its order or decree shall not autho-rize such admission or commitment except after a hearing for the purposes of which counsel shall be appointed for any indigent, allegedly mentally ill or retarded person. G.L. c. 201 §§ 6 & 6A.

A mental health or retardation facility is a ". . . public or private facility for the care and treatment of mentally ill or mentally retarded persons. . ." G.L. c. 123, §1. These provisions plainly apply to state hospitals for the mentally ill and state schools for the mentally retarded. They also are applied to locked psychiatric units of general hospitals that are licensed by the Department of Mental Health. They do not apply to nursing homes, halfway houses, and general hospitals, including many general hospital psychiatric wards.

If the incompetent person indicates a desire to receive treatment in a men-tal health or retardation facility, the petitioner must demonstrate that such treat-ment is in the wards best interest. In situations when the incompetent person does not wish to receive treatment in the mental health or retardation facility the petition must demonstrate that the person is so seriously disabled that his cir-cumstances meet the standard for civil commitment described in G.L. c. 123. This means that the petitioner must demonstrate that the failure to hospitalize the ward would create a likelihood of serious harm as defined in G.L. c. 123 §1. In addition the petitioner must prove the need for hospitalization beyond a reason-able doubt. The Supreme Judicial Court ruled that these standards are required because the "best interests of the ward" can only be protected in this circum-stance if the ward is given-
. . .the rights and choices similar to those he would have in proceedings under c. 123. Commitment un-der c. 201 produces the same loss of freedom and the same label of mental illness as commitment under c. 123. Doe v. Doe, 377 Mass. 272 (1979).

The civil commitment statute insures that only seriously mentally ill per-sons are committed to mental health facilities.
Mental illness - A substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to rec-ognize reality or ability to meet the ordinary de-mands of life, but shall not include alcoholism. 104 CMR 3.01.
Also the phrase "likelihood of serious harm" has a very specific meaning when it is applied to civil commitment cases:
(1) a substantial risk of physical harm to the person himself as manifested by evidence of threats of, or at-tempts at, suicide or serious bodily harm;
(2) a substantial risk of physical harm to other per-sons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physi-cal harm to them; or
(3) a very substantial risk of physical impairment or injury to the person himself as manifested by evi-dence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community. M.G.L. c. 123 § l.

Situations that may include a likelihood of serious harm by reason of men-tal illness include elderly persons who are so confused that they cannot provide sufficient self-care leading to malnutrition, weight loss, wandering, lack of heat in winter, etc. Such situations do not include elderly persons who may choose to forgo prescribed medical care for reasons which medical professionals may find seemingly irrational, or who may choose an eccentric life style that their family finds offensive. Finally the Doe case implies that all of the other procedural protec-tions found in the civil commitment statutes must be provided to guardianship cases where the petitioner is seeking the authority to admit to a mental health or retardation facility. These procedures are not specifically enumerated in the guardianship statutes; however, they are usually followed in such cases. These procedures include: the right to written notice of the time and place of the hear-ing (G.L. c. 123, §§ 5, 7); the right to a full hearing, including the right to present independent testimony; the right to cross examine witnesses; the right to be pre-sent at the hearing; the right to an independent psychiatric examination (G.L. c. 123, § 5, see also Commonwealth v. Thompson, 386 Mass. 811(1982)); the right to a speedy hearing, i.e., within four days of the filing of the petition (G.L. c. 123, § 7, see also Hashimi v. Kalil, 388 Mass. 607 (1983)); the right to a speedy adjudication (G.L. c. 123, § 8(c); and the right to have the period of commitment limited initially to six months and thereafter to one year (G.L. c. 123, § 8(d). In addition, the Supreme Judicial Court has stated that the petitioner must prove that the person is commitable beyond a reasonable doubt. Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271 (1978). Finally, commitment to a mental hospital must be the least restrictive alternative available to protect the incompetent person. Gallup v. Alden, Mass. App. Ct. Adv. Sh. (1975) 113.

Although the issue of the time limit on a guardian's authority to admit has never been decided by an appellate court. The practice of most probate judges is to grant a permanent guardianship with the authority to admit without any time limitation written into the decree. Many hospitals and their legal counsel accept a voluntary admission signed by the permanent guardian who has received the authority to admit the ward for multiple admissions regardless of the period of time that elapsed from the court hearing that granted the authority to admit the ward. The Supreme Judicial court in the Doe case, supra, found that the authority of a guardian to admit the ward to locked psychiatric facility was constitutionally sound if the Probate Court afforded the ward the same due process protections that apply in a civil commitment proceeding. A person who is released from a psychiatric hospital subsequent to a civil commitment hearing cannot be recommitted without a new hearing pursuant to the procedures outlined in M.G.L. c.123. Therefore, there is no legal basis for a guardian's authorization of his ward's admission to a locked psychiatric facility without specific and up to date judicial authorization for such admission.

GUARDIANSHIP WITH THE AUTHORITY TO ADMINISTER EXTRAORDINARY MEDICAL TREATMENT
A general guardian has the inherent authority to consent to "usual and cus-tomary medical treatment." Although this phrase has never been judicially de-fined, and some individual judges apply a very narrow meaning, usual and cus-tomary treatment usually includes any medical procedure that is not characterized as "extraordinary treatment". Plainly included are routine and preventative care and most diagnostic procedures. Plainly excluded are admissions to mental health facilities, non-emergency treatment with anti-psychotic medication, electro-convul-sive therapy, and sterilization.

The guardianship statutes include sections that provide specific additional procedures when the guardian is seeking the authority to consent to treatment with antipsychotic medication. See G.L. c. 201 §§ 6 (c-e) & 6A (c-e). The statute implies that these additional procedures are only required in cases involving the adminis-tration of antipsychotic medication. This is incorrect. These procedures are re-quired in all cases involving the administration or withholding of extraordinary medical treatment. Such treatment may include electro-shock therapy, psycho-surgery, sterilization, amputation, or the withholding of life prolonging treatment. In a series of decisions from Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977), to Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) and Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417 (1986) the Supreme Judicial Court has established guidelines for identifying medical treatment that it considers extraordinary. The court has also described the procedures that apply to such cases.

Today many of the decisions guardians are asked to make involve complex ethical and medical issues. These issues may involve the removal of an unconscious person from life sustaining equipment, the administration of experimental, possi-bly dangerous drugs, or invasive, irreversible surgery. The courts in many states have struggled with questions about the rights of incompetent persons to make these decisions, the role of the courts in the decision making process, the proper person to act as a substitute decision-maker, and the standards that must be applied by the substitute decision-maker.

In Massachusetts the first case addressing these issues involved a sixty-seven year old retarded man who had been a life-time resident of a state school for per-sons with mental retardation. The Department of Mental Health discovered that Mr. Saikewicz was suffering from leukemia. The only possible treatment for his condition was the administration of chemotherapy. The treatment was difficult to administer particularly under the circumstances of the particular case, since Mr. Saikewicz's lack of comprehension of the treatment and inability to cooperate would necessitate his physical restraint. The treatment would also produce a num-ber of serious side effects. At best, the treatment would extend Mr. Saikewicz's life a brief period of time. The Department felt it that it did not have the authority withhold or administer the treatment, therefore it filed a petition in the probate court requesting the appointment of a guardian who could make the decision. The Department assumed that the guardian would have the inherent power to autho-rize the administration or the withholding of the chemotherapy.

The probate court asked the SJC to determine its authority to order the with-holding of certain medical treatment. The trial court also asked the SJC to determine the proper course of action based on the facts of the case. The SJC decided that the probate court had the authority to act; furthermore, it agreed that Mr. Saikewicz was incompetent to make the treatment decision. However it decided that the diffi-cult decision whether or not to administer the life prolonging medical treatment must not be delegated to a guardian. The court held that such a decision could only be made by the Probate Judge after determining what the incompetent person would have decided if he were competent. The court further held that the question before the probate court did not require a medical decision; rather the role of the probate court was to determine 'the incompetent person's actual interests and pref-erences,' recognizing that ". . . the substantive rights of the competent and the in-competent person are the same in regard to the right to decline potentially life pro-longing treatment.' Saikewicz, supra. Although this intrusion by the judiciary into the traditional medical decision making process was unprecedented, the court stated unequivocally that decisions about the administration or withholding of medical treatment for incompetent persons must not be left to the medical profes-sion.

We do not view the judicial resolution of this most difficult and awesome question-whether potentially life prolonging treatment should be withheld from a person incapable of making his own decision-as constituting a "gratuitous encroachment" on the do-main of medical expertise. Rather, such questions of life and death seem to us to require the process of de-tached but passionate investigation and decision that forms the ideal on which the judicial branch of gov-ernment was created. Achieving this ideal is our re-sponsibility and that of the lower court, and is not to be entrusted to any other group purporting to repre-sent the "morality and conscience of our society," no matter how highly motivated or impressively consti-tuted. Saikewicz, supra

Finally, the SJC ruled that the standard to be applied by the probate court judge when making the decision was the substituted judgment standard. This stan-dard requires the probate Judge to determine what the incompetent person would have decided if he were competent.

In 1981, the SJC was asked to decide the authority of a probate court to ap-point a guardian with the authority to consent to the administration of antipsy-chotic medication to his non-hospitalized ward. The Court held that antipsychotic medication was such an intrusive form of treatment that the decision to consent to its application could not be delegated to a guardian. Such a decision required a ju-dicial decision-maker to make a substituted judgment determination. Guardianship of Roe, Mass. Adv. Sh. (1981) 981.

The Roe case was the last in a series of cases that were decided after Saikewicz. In each case, doctors, attorneys and judges were attempting to identify those extraordinary medical treatment decisions that could not be delegated to guardians and must be reserved for probate judges. See Matter of Spring, 380 Mass. 629 (1980); Custody of a Minor, 385 Mass. 697 (1982); Matter of Moe, 385 Mass. 555 (1982). The SJC in Roe described the test to differentiate those treatment decisions that may be delegated to guardians from those that must be made by the probate court judge. The court listed a number of factors that must be considered. These included the intrusiveness of the proposed treatment, the possibility of adverse side effects, the absence of an emergency, the likelihood of any conflicting interests among the parties to the petition, and the nature and extent of prior judicial in-volvement.

It is clear from past decisions that extraordinary treatment includes electro-convulsive therapy, psycho-surgery, amputation, sterilization, the withholding of life-sustaining treatment (including mechanically-administered hydration and nu-trition) and treatment with antipsychotic medication. Antipsychotic medication in-cludes "[m]edications such as Thorazine, Mellaril, Prolixin, and Haldol that are used in treating psychosis, particularly schizophrenia." Rogers, supra at 489 fn 3. These medications do not include most antidepressants, anti-anxiety medications and lithium.

Those courts that have looked at the problem of defining the appropriate scope of court involvement in medical treatment have been influenced primarily by the intrusiveness of the treatment and degree of severity of the possible side effects. Sterilization and amputation are extraordinary because they are irreversible. Treatment with antipsychotic medication is considered extraordinary because it has the potential for causing a serious and sometimes irreversible side effect known as tardive dyskinesia, and may constitute an invasion into private and constitutionally protected areas of personal thought. Sterilization similarly impacts constitutionally protected domains. Many other forms of surgery and medications may be consid-ered to be risky or invasive and may require a judicial decision-maker. The factors described above must be applied to each situation.

All medical treatment offered to an incompetent person requires the in-formed consent of a substitute decision-maker. Extraordinary medical treatment requires a judicial decision-maker whereas a guardian makes decisions regarding customary and usual medical treatment.

When situations require a judicial decision-maker the judge must identify the choice the incompetent person would make if he were competent, taking into ac-count all of the appropriate factors. In some situations the decision may not nec-es-sarily one that is in the incompetent persons best medical interest. This "substitute judgment decision" must encompass the following factors: the incompe-tent per-son's expressed preferences regarding the treatment; the person's religious beliefs, to the extent that they may be a factor for him in making medical treatment deci-sions; the impact of the decision to accept or refuse the treatment on the per-son's family; the probability of adverse side effects and the degree of severity of the side effects; the prognosis without the proposed treatment; and, the prognosis with the treatment. After considering all of these factors, and any other evidence he deems relevant, the judge will authorize or refuse to authorize the administration or with-holding of the extraordinary medical treatment. In acting favorably upon a peti-tion, the judge will ordinarily issue or approve a written substitute judgment treat-ment plan.

The guardian's role in substitute judgment cases is to monitor the treatment plan. Although the judge has the decision making responsibility, at least with re-spect to any extraordinary medical treatment, the guardian is the person with the obligation to consult with the treating professionals and the patient. If there is any need to modify the treatment plan, the guardian should alert the judge and request the modification.

TEMPORARY GUARDIANSHIP
The appointment of temporary guardians is governed by G.L. c. 201, §14 and rule 29B of the Probate Court General Rules. A temporary guardian is appointed when the notice requirements of a regular guardianship proceeding would place the ward at risk of harm. The statute provides that a temporary guardianship peti-tion may be filed by any agency within the executive office of human services, or educational affairs, or any other person in interest. The statute permits the probate court to appoint a temporary guardian ". . . if it finds that the welfare of the . . . per-son . . . requires the immediate appointment of a temporary guardian . . ." (G.L. c. 201, §14). This language appears to allow the appointment of a temporary guardian in circumstances where the narrower language of G.L. c. 201, §§6, 6A or 6B would not permit the appointment of a permanent guardian. In those few cases which have addressed the issue of the standard to be applied in the appointment of a tem-porary guardian, the courts have required the same finding as they do for the ap-pointment of a permanent guardian: that is the person must be unable to care for himself by reason of mental illness or mental retardation. See In the Matter of the Guardianship of Roe, Mass. Adv. Sh. (1981) 981, Fazio v. Fazio, 375 Mass. 394 (1978). Presumably the same approach will be taken regarding the new physical in-capacity standard. The primary difference in the proceedings is the shortened and frequently eliminated notice requirement of a temporary guardianship petition.

The temporary guardianship statute permits the appointment of a temporary guardian ". . . with or without notice . . ." to the prospective ward. Rule 29B of the Probate Court General Rules requires written notice of a hearing on a temporary guardianship petition to be given at least seventy-two hours prior to the hearing. The rule permits waiver of this requirement if the court determines that a situation exists which requires the immediate appointment of a temporary guardian. In ex-treme emergencies a judge may enter a temporary order in the middle of the night. The state police have a list of on-call judges who are available to enter temporary orders any time the courts are not in session.
If a temporary guardianship without prior notice is granted, the ward must be given notice of the allowance of the petition within three days. Furthermore, the ward may move to vacate or amend the petition at any time. The rule also requires the court to hear the ward's motion to vacate as expeditiously as possible and treat the matter as de novo. This means the petitioner retains the burden of proving the need for continuing the temporary guardianship. If within three days of the al-lowance of the petition, the petitioner fails to file a sworn affidavit informing the court that the ward was given notice of the allowance of the petition, the court on its own motion may vacate the decree. The rule provides that a temporary guardianship is in effect for ninety days and may be extended one additional ninety period, however some courts will extend it for additional periods if there is a good reason to extend the temporary and going forward on the permanent guardianship.

Unless limited by the decree, a temporary guardian has the same powers and duties relative to the person and property of the ward as a permanent guardian. This means, of course, the temporary guardian generally must follow the same pro-cedures, and must be aware of the same restrictions as a permanent guardian with respect to placing the ward in a mental health facility or authorizing intrusive or dangerous medical procedures.

Although the statute appears to permit the filing of a petition requesting the appointment of a temporary guardian, the universal practice of the probate courts is to require the filing of a petition seeking the appointment of a permanent guardian and a motion requesting the appointment of temporary guardian. This means the petitioner must file a medical certificate or a clinical team report with all requests for temporary guardianships. In addition, a bond must be filed if the tem-porary guardian is seeking temporary authority to control the person's estate.
The temporary guardianship statute describes a detailed procedure that must be followed before a temporary guardian may be given the authority to admit his ward to a mental health facility. This procedure is in many ways identical to the procedure found in M.G.L. c. 201, §6. However, the temporary guardianship statute also provides a process for granting the guardian the authority to admit a ward to a mental health facility in an emergency that is unique.

Before a temporary guardian may be granted the authority to admit his ward to a mental health facility, or consent to the administration of extraordinary medical treatment, including antipsychotic medication, the probate court must hold an adjudicatory hearing. The ward must be appointed counsel for this hearing and un-less there are ". . . extraordinary circumstances requiring his absence . . ." the ward must be present. If the ward is unable to be present, his counsel's presence will suffice.

In cases of "extreme emergency," however, the probate court may authorize admission to a mental health facility after an ex parte hearing. Prior to issuing this ex parte order, the court must find ". . . that the remedies under the emergency pro-visions of G.L. C. 123, §12 are not applicable or would not be available to deal with the present emergency." G.L. c. 123, §12 is the section of the mental health law that permits a person to be held against his will in a mental health facility for up to ten days. It permits a doctor, a designated psychologist, or a police officer to or-der a person who is believed to be mentally ill and dangerous to be restrained and transported to a mental health facility. At the facility the person is examined by a "designated physician," and may be involuntarily admitted for up to ten days. (The qualifications for a designated physician are defined by the department of mental health and are found in 104 CMR 3.07. This person is almost always a psychiatrist.) Section 12(e) authorizes any person to request a district court to issue a writ of ap-prehension which will cause a person who is believed to be mentally ill and dan-gerous to be forcibly taken to the court and examined by a designated physician. If the physician agrees that the person should be committed, the district court judge may order his commitment for ten days.

SELECTION OF A GUARDIAN
After it is decided that an incompetent person requires the assistance of a guardian, the people involved are do not always consider all of the issues involved in selecting the best person to serve as guardian. A parent of an incompetent person or any two relatives or friends of the incompetent person may file a guardianship petition. These petitioners generally nominate a person they believe is suitable to act as guardian. In the majority of cases the petitioners ask the court to appoint themselves as guardians, although there is no legal requirement that the petitioner must be nominated as the guardian. In the vast majority of cases the petitioner is a caring person familiar with the incompetent person, and the guardianship simply serves to legitimize the petitioner's relationship with the incompetent individual.

However, there are circumstances where petitioner is not suitable to serve as guardian. The proposed guardian may have unresolved conflicts with family members of the incompetent person, or may have conflicts with the incompetent person making it impossible for the guardian to act in the ward's best interest. The proposed guardian may be otherwise incapable of making decisions in the ward's best interest for a variety of reasons that vary with each individual case.

Guardianship may produce a significant breach in family relationships. Interfamily tensions may be heightened if the guardian is a family member. The parent seeking guardianship of a mentally ill young adult may be perceived by his son as an over controlling parent who is trying to impose his values on his child. The adult child seeking guardianship of a mentally ill or demented parent may be perceived as a scheming child who is more interested in safeguarding her inheritance than protecting her parent. Siblings may disagree about the need for a guardian or they may agree about the need for a guardian, but dispute the choice of a guardian. Siblings may bring all manner of sibling rivalries into the selection of a guardian for an incapacitated parent. Family disputes regarding the choice of a family member to serve as guardian often lead to expensive and emotionally explosive litigation in the Probate and Family Court.
The law gives little guidance regarding the standards judges should follow when selecting a guardian. Judges have broad discretion in choosing a guardian who can protect the best interests of the incompetent person. Judges generally appoint the individual nominated in the petition unless there is an objection raised by any of the parties. The ward and each of his heirs at law are entitled to notice of the guardianship and they each have the right to raise an objection to need for a guardian or, if they agree to the need for a guardian, to the selection of the proposed guardian.
The ward's nomination of a future guardian written into durable power of attorney is binding, and the judge must appoint the designated person, unless there is good cause shown that the person selected is unsuitable to serve as guardian. Guardianship of James A. Smith, 43 Mass. App. Ct. 493 (1997). In the absence of a power of attorney, the court may review any relevant evidence when choosing a guardian. The court may consider the expressed wishes of the ward as evidence of the ward's best interest. The court may look to the ward's current capacity to indicate her desires, or it may look to prior statements or actions indicating the ward's preferences regarding a guardian. The court may consider a family member's history of caring for the ward, however the court is not required to select the family member who spent the most time with the ward, or who spent the most money on the ward, or who visited the ward the most. The judge must choose the individual who can protect the ward's best interests. This means the court must select a guardian who can insure that the ward's medical, financial and personal needs are met. It also means that the judge must select an individual who can maintain and encourage the ward's relationships within her community of family members and social acquaintances. Judges will not appoint a family member who has alienated other members of the family in a manner that impedes their relationships with the ward.

Most judges will appoint an objective third party in cases where the family conflict presents itself in court. The court will select an attorney or mental health professional to act as guardian. The ward's assets will be used to pay the fees of the guardian. There are a few social service agencies that provide guardianship services in some parts of the state. These programs were created to serve as guardians for incompetent persons who have no one to act as their guardian, however the agencies occasionally accept appointments to serve as a guardian in contested cases.

POWERS OF THE GUARDIAN
Families of mentally ill persons are frequently encouraged to file guardianship petitions in an effort to force treatment on their mentally ill relative. Although a guardian has the legal authority to consent to treatment, it is important for family members to understand the practical limitations of the powers of the guardian before they begin the guardianship process.

A general guardian appointed by the Probate and Family court has the legal authority to make all personal decisions on the ward's behalf and to control all of the ward's real and personal property.

The guardian of a mentally ill or mentally retarded person or spendthrift shall have the care and custody of the person of his ward, except as provided in section twenty-four, and the management of all his estate. G.L. c. 201 §12

The guardianship statutes contain a number of provisions that describe the guardian's duties and responsibilities for handling the ward's property. (See. G.L. c. 201 §§ 37, 38, 38A & 39) However, the law provides little guidance for the guardian regarding his duties and responsibilities when caring for the person of the ward.

The guardianship may be limited. In some cases the guardian may have authority to manage some, but not all of the ward's affairs. The court may mold these "limited" guardianships to meet the specific needs of the ward. Guardianship of Lawrence Allen Bassett, 38S N.E.2d 1024 (1979). The physician who signs the medical certificate that is filed in every guardianship of a mentally ill persons is required to outline in detail the types of decisions that the ward has sufficient mental ability to make. A limited guardianship will include specific written limitations on the guardian's authority in the decree signed by the judge. However, most courts grant full guardianships over the person of the ward and do not provide any limitations on the guardian's powers.

The general guardian is responsible for making all decisions regarding the ward's medical care, including choosing the treating physician, receiving medical information from the physician, choosing the location of the treatment, and giving or withholding consent to treatment; making living arrangements for the ward, including the location and type of residence and the identity of any roommates; making decisions about the ward's employment or education; controlling the ward's choice of friends and companions; etc. The guardian will make these decisions on his ward's behalf by maintaining communication with the ward and the individuals involved with the ward's care and treatment. However, there may be significant limitations on the guardian's capacity to compel the ward's compliance with his decisions.

The guardian can usually rely on the treatment team to carry out his decisions if the ward resides in a hospital, nursing home, group home or other supervised environment. However, there may be problems if the ward lives on his own in the community, or in a loosely supervised community setting. The guardian can instruct his ward to take certain medicine, or live in a specified location or avoid certain individuals in the community, but the guardian has relatively little powers of enforcement.

The guardian can attempt to use his personal relationship with the ward to persuade him comply. This effort may be more successful if the guardian can remind the ward past painful events that occurred when the ward failed to comply with the guardian's directives.

There are a few additional tactics guardians may attempt to force a recalcitrant ward to accept treatment or comply with the guardian's decisions. The guardian may force the ward's compliance in situations where the guardian controls the ward's funds, or has a good working relationship with a third party who controls the funds such as a trustee. The guardian can withhold funds or make the purchase of items the ward wants contingent on the ward's compliance with treatment. The guardian can refuse to pay rent on a residence the guardian feels is not suitable for the ward. In some cases, the guardian can use the funds to reward good behavior. When persuasion or the control of funds cannot force compliance, the guardian may turn other figures in the ward's life who have the authority to force compliance.

Family members usually make every effort to help their mentally ill relatives avoid the criminal process. However, criminal prosecution may be the only way to force treatment on an unwilling patient. Criminal justice issues are not unusual for persons under guardianship who are not compliant with treatment. It may be in the ward's best interest for the family to bring charges on an incident involving minor misdemeanor before a situation escalates to a felony.

Guardians may work with criminal defense attorneys or probation officers in an effort to force the ward to comply with treatment in cases where the ward is charged with a crime. The guardian can encourage the ward to accept terms of probation that require treatment compliance and work with the probation officer to monitor compliance. The guardian cannot force the ward to accept terms of probation and the guardian cannot enter a plea agreement on behalf of a ward who is not competent to stand trial. Commonwealth v. DelVerde, 398 Mass. 288 (1986) However, the guardian can talk to the prosecutor and probation officer about a plea agree that requires the ward to accept treatment, and encourage the ward to accept the plea instead of a jail sentence. The final decision is the ward's; the guardian can encourage him to accept treatment in lie of jail.

There are other methods of coercive treatment that may work in specific cases. A ward who is involved in custody cases, either with DSS or in a divorce or paternity matter, may have his access to his children contingent on treatment compliance. Guardians have the authority to enter into such agreements and give permission for the ward's physician to disclose compliance or noncompliance to the custodial parent or agency. A guardian may inform the ward that he will keep the ward's landlord informed about the treatment in an effort to avoid an eviction caused by the ward's behavior.

Finally a guardianship may provide some benefit to the ward in cases where compliance is an issue. In addition, the guardian has the right to obtain information from the ward's physician in order to monitor the ward's compliance with treatment. This may permit the guardian to avert a crisis by seeking treatment before the ward completely deteriorates and requires emergency hospitalization. Also, the guardian can consent to treatment for a hospitalized ward from the moment the ward is placed in the hospital. Thus avoiding a period of untreated hospitalization while the hospital or family is seeking court authority to administer treatment.

ALTERNATIVES TO GUARDIANSHIP
Guardianship is not the exclusive method for assisting incompetent per-sons to handle their affairs. There are many alternate legal devices that protect the person's property and are less invasive of individual rights. These include revocable and irrevocable trusts, durable powers of attorney, conservatorships and health care proxies. These alternatives permit a competent individual to exe-cute a legal document designating a family member or a trusted friend to make decisions on his behalf, should he become incompetent in the future. Many at-torneys are utilizing this type of planning to assist their clients plan for future personal decision making.

The two most commonly utilized legal procedures for designating future decision-makers in Massachusetts are the durable power of attorney and the health care proxy. Many other states permit competent persons to sign a living will. In Massachusetts, living wills may be helpful in determining an individu-al's intent in the context of a determination of substitute judgment, but they are not legally enforceable in themselves.

The Massachusetts legislature decided that the health care proxy is the appropriate legal document for designating alternative medical decision-makers. The health care proxy was created by the legislature in December 1990, and is found in G.L. c. 201D. A living will provides instructions about an individual's desire to receive or refuse treatment if he is in a coma or otherwise unable to communicate and he requires life saving treatment such as artificial feeding. A health care proxy is a legal document that a competent individual may execute designating a health care "agent" to make all medical decisions on his behalf if he becomes incompetent to make medical decisions. The health care agent is per-mitted to make all health care decisions, including decisions about life sustaining treatment. Thus the health care proxy provides for broad based future medical decision making and in many ways is preferable planning document. A carefully drafted health care proxy may also provide language and instructions that are similar to a living will by providing appropriate instructions about the indi-vid-uals personal desires and beliefs regarding life sustaining treatment.

Any competent adult in Massachusetts may execute a health care proxy designating another competent adult to make future health care decisions. The individual executing the document is the health care principal and the future decision-maker is his health care agent. The statute provides specific formalities for drafting and executing the document. The health care proxy should be shared with the individual's treating physician and other health care providers. The proxy is utilized when the treating physician determines that the principal is not competent to make health care decisions and turns to the agent for permission to treat. The proxy may be revoked by the principal and the principal may refuse treatment authorized by the agent.

The health care proxy may provide for all medical decisions or it may be specifically limited by the principal. In the absences of specific language the agent must decide:
(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 interest. G.L. c. 201D § 5.
The principal may choose to include specific limiting language in the proxy or he may choose to provide written instructions to the agent outside of the document. These serve to give the agent an indication of the principals desires, but the are not binding on the agent.

The health care proxy statute is very new and there are some questions raised by the statute that remain unanswered. Many attorneys and hospital per-sonnel are not certain that the law permits the health care agent to consent to an-tipsychotic medication or psychiatric hospitalization in the absence of specific au-thority from a probate court as required by the judicial decisions described above. Some hospitals will accept a health care agent's consent to some treat-ment and some will not. There is no uniform opinion on this issue. Many hospi-tals require a health care agent to seek a guardianship and specific court author-ity to consent to the administration of antipsychotic medication or psychiatric hospitalization. In addition, many mentally ill patients will exercise theirs legal rights and refuse psychiatric treatment that is authorized by the agent.

I believe that a carefully drafted document is the best way to avoid any problems about the agent's authority to consent to extraordinary medical treat-ment. If the individual has a history of treatment for mental illness and has spe-cific desires about the use of certain antipsychotic medications or electro-convul-sive therapy, for example, he should clearly state his desires in the health care proxy. If the individual has strong feelings about his right to die without intru-sive medical intervention, he should state those feelings as well. In this situation the individual should clearly state the future condition that will trigger the with-holding of treatment. He should make provisions for situations when he might be terminally ill and situations when he may not be terminally ill, but he has permanently lost all cognitive functions. In addition, the individual should clearly describe his wishes with regard to all possible future treatments. It is most important to have separate provisions indicating his desires regarding the withholding of traditional medical interventions and food and water. I have in-cluded a sample health care proxy form that includes specific language for many of these issues. Such language is not necessary in all circumstances -- some prac-titioners prefer not to include living will language in the health care proxy at all, but instead rely on the general grant of authority alone and thereby lessen the risk of conflict over interpretation of the instrument. But attorneys may want to consider including these provisions in appropriate cases.

A durable power of attorney is authorized by the Uniform Durable Power of Attorney Act, G.L. C. 201B. It is a power of attorney that remains in effect de-spite the disability or incapacity of the principle. A durable power of attorney can also be written as a "springing power," whereby it first becomes effective upon the disability or incapacity of the principle, and then remains in effect. Although making decisions about financial affairs of the incapacitated person is the traditional purpose of the durable power of attorney, in the past many attor-neys advised their clients to execute durable powers that authorized personal de-cision-making as well. Despite the absence of statutory authority or case law in support of the viability of such extensions of the basic statute, documents were drafted that permitted the attorney-in-fact to place the principle in a nursing home or a hospital, to make medical decisions and in some circumstances to refuse the application of life-sustaining medical procedures. The health care proxy law neither validates nor invalidates such so-called medical durable pow-ers of attorney that were signed before December 18, 1990. Given remaining questions about the validity of any such powers of attorney, it would be advis-able, in any situations where it is still feasible, to have clients re-execute their in-struments as health care proxies.

The present Massachusetts law clearly supports extensive judicial in-volvement in most personal decision making on behalf of incompetent persons. Health care proxies will reduce the amount of judicial involvement, but many situations will still require judicial decision making. Massachusetts's law has a strong preference for supporting the clearly held beliefs of competent individu-als. Therefore it is very important for competent persons to clearly state their desires with regard to future medical treatment. Their family and friends may not make the decision, but they will be able to convince the judge to make the correct decision.

SAMPLE HEALTH CARE PROXY

MASSACHUSETTS HEALTH CARE PROXY

TO MY FAMILY, DOCTORS, AND ALL THOSE CONCERNED
WITH MY CARE:

1. Appointment
I, ______________ (the principal), residing at ______________ , Massachusetts, being a competent adult at least eighteen years of age or older, of sound mind and under no constraint or undue influence, hereby appoint the fol-lowing person to be my HEALTH CARE AGENT under the terms of this docu-ment:

Name: ______________
Address: ______________ , Massachusetts
Telephone: ______________

In so doing, I intend to create a Health Care Proxy according to Chapter 201D of the General Laws of Massachusetts. In making this appointment, I am giving my Health Care Agent the authority to make any and all health care decisions on my behalf, including decisions about life-sustaining treatment, subject to any limita-tions I state in this document, in the event that I should at some future time be-come incapable of making health care decisions for myself.

2. Alternate Appointment
I hereby appoint the following person to serve as my Health Care Agent in the event that my original Health Care Agent is not available, willing or compe-tent to serve and is not expected to become available, willing or competent to make a timely decision given my medical circumstances, or in the event that my original Health Care Agent is disqualified from acting on my behalf.

Name: ______________
Address: ______________
Telephone: ______________

3. Powers Given to Health Care Agent
A. I give my Health Care Agent full authority to make any and all health care decision for me including decisions about life-sustaining treatment, subject only to the limitations I state below.
B. My Health Care Agent shall have authority to act on my behalf only if, when and for so long as a determination has been made that I lack the capacity to make or to communicate health care decision for myself. This determination shall be made in writing by my attending physician according to accepted stan-dards of medical judgment and the requirements of Chapter 201D of the General Laws of Massachusetts.
C. The Authority of my Health Care Agent shall cease if my attending physi-cian determines that I have regained capacity. The authority of my Health Care Agent shall recommence if I subsequently lose capacity and consent for treatment is required.
D. I shall be notified of any determination that I lack capacity to make or communicate health care decisions where there is any indication that I am able to comprehend this notice.
E. My Health Care Agent shall make health care decisions for me only after consultation with my health care providers and after full consideration of accept-able medical alternatives regarding diagnosis, prognosis, treatments and their side effects.
F. My Health Care Agent shall make health care decisions for me only in ac-cordance with my Health Care Agent's assessment of my wishes, including my religious and moral beliefs, or, if my wishes are unknown, in accordance with my Health Care Agent's assessment of my best interests.
G. My Health Care Agent shall have the right to receive any and all medical information necessary to make informed decisions regarding my health care, in-cluding any and all confidential medical information that I would be entitled to receive.
H. The decisions made by my Health Care Agent on my behalf shall have the same priority as my decisions would have if I were competent over decisions by any other person, including a person acting pursuant to a durable power of at-torney, except for any limitation I state below or a specific Court Order overrid-ing this Health Care Proxy.
I. If I object to a health care decision made by my Health Care Agent, my decision shall prevail unless it is determined by Court Order that I lack capacity to make health care decisions.
J. Nothing in this proxy shall preclude any medical procedure deemed nec-essary by my attending physician to provide comfort care or pain alleviation in-cluding but not limited to treatment with sedatives and painkilling drugs, non-artificial oral feeding, suction, and hygienic care.
K. (OPTIONAL) I understand that by signing this document I am giving my health care agent the authority to exercise his/her best judgment regarding all health care decisions including decisions about life-sustaining treatment. Regarding deci-sions about life-sustaining treatment, as authorized under Section 5 of M.G.L. c. 201D, it is my desire that my agent may be guided by the following statement of my beliefs. I believe that death is a natural part of life. Dying should not be un-nec-essarily prolonged, to my own detriment and indignity, and to the agony of my family. While I believe in the sanctity of life, I feel that circumstances may exist in which the effort to sustain my life may itself degrade or demean the hu-manity without which I feel my life has no meaning. I believe also that I have the right to refuse medical treatment, whether or not I am mentally competent to do so, and that my family, guardian, attorney and physicians should undertake to act under this statement without guilt or feeling of re-sponsibility on their part, since their actions are in furtherance of my wishes. Therefore, if I should become unable to participate meaningfully in decisions concerning my medical care and treatment, under the circumstances de-scribed below, or under similar circum-stances, it is my desire that my wishes as described be carried out, as expedi-tiously as possible. This statement is made after careful consideration and reflec-tion, and with full awareness of the pain, indignity, and discomfort which may itself accompany the withholding or withdrawal of care and sustenance, but with also the fullest faith that the judgment of my family and physicians in mak-ing any decision will comport with my wishes. It is therefore my intention that these directions be honored by my family and physicians as a final reflec-tion of my le-gal right to refuse medical treatment under the conditions speci-fied, and I accept the consequences of this refusal.
1. If I come to suffer an injury, disease or illness considered in-cur-able and terminal by my physicians, I direct my physicians and all medical personnel to withhold or withdraw all life-sustaining procedures which would serve only to prolong the dying process artificially, whether con-sidered active or passive, ordinary or extraordinary, including, without limitation, the withholding of food and water.
2. If I suffer serious and irreversible brain damage as a result of any ill-ness or injury to the extent that I have lost cognitive function with no signifi-cant likelihood of regaining it, whether or not I am terminally ill, I direct my physicians and all medical personnel to withhold or withdraw all life-sustain-ing procedures which would serve only to prolong the dy-ing process artifi-cially, whether considered active or passive, ordinary or extraordinary, in-cluding without limitation the withholding of food and water.
L. I specifically limit my Health Care Agent's authority as follows:

(OPTIONAL)
Example
1. I acknowledge that I received medication for the treatment of men-tal illness in the past. Some of these medications I have found helpful, and others have caused me discomfort and have not been helpful. I have ex-pressed my feelings about these medications to my health care agent and I have faith that she will only consent to the administration of medications or treatments that I would consent to if I were competent. However by executing this health care proxy it is my intention to limit my agent's au-thority by :
2. My agent may only consent to the following medication or treat-ment's if they are prescribed by my treating psychiatrist. (if they are pre-scribed by Dr. "X".) (if they are required to permit me to remain out of a psychiatric hospital.) My agent may not consent to the administration of any other treatment or medication for the treatment of my mental condi-tion.
3. My agent may consent to the administration of any medication or treatment that is prescribed by my treating psychiatrist except.
4. My agent may consent to any medication, but she may not consent to the administration of electro-convulsive therapy.

4. Revocation
This Health Care Proxy shall be revoked upon any one of the following events:

A. my execution of a subsequent Health Care Proxy;
B. my divorce or legal separation from my spouse where my spouse is named as my Health Care Agent;
C. my notification to my Health Care Agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the Health Care Proxy.

5. Signature of Principal

I hereby sign my name to this Health Care Proxy in the presence of two witnesses.

Signature: ____________________________________
Date:

Complete here if the principal is physically incapable of signing:
I hereby sign the name of the principal at the principal's direction and in the presence of the principal and two witnesses.
Name of Principal: __________________________________

Name of Signatory: _________________________________
Date:

Address of Signatory: ________________________________
________________________________

6. Witnesses
WITNESS ONE: I, the undersigned, have witnessed the signing of this docu-ment by the principal or at the direction of the principal and state that the princi-pal appears to be at least eighteen years of age, of sound mind and under no constraint or undue influence. I have not been named as Health Care Agent or alternate Health Care Agent in this document.
Signature: _______________________________________

Name (print): _____________________________________
Address: _______________________________________
_______________________________________
Date:

WITNESS TWO: I, the undersigned, have witnessed the signing of this docu-ment by the principal or at the direction of the principal and state the principal appears to be at least eighteen years of age, of sound mind and under no con-straint or undue influence. I have not been named as Health Care Agent or alter-nate Health Care Agent in this document.

Signature: _______________________________________

Name (print): _____________________________________
Address: _______________________________________
_______________________________________
Date:

7. Statement of Health Care Agent and Alternate (Optional)
Health Care Agent:
I have been named by the principal as the principal's Health Care Agent in this document.
(Please check one)
___ I am not an operator, administrator or employee of a hospital, clinic, nurs-ing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the princi-pal is presently a patient or resident or has applied for admission.
___ I am an operator, administrator or employee of a hospital, clinic, nursing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the principal is presently a patient or resident or has applied for admission, and I am also related to the principal by blood, marriage, or adoption.
I have read this document carefully and accept the appointment.

_________________________________
Signature of Health Care Agent

 

Alternate Health Care Agent
I have been named by the principal as the principal's alternate Health Care Agent in this document.
___ I am not an operator, administrator or employee of a hospital, clinic, nurs-ing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the princi-pal is presently a patient or resident or has applied for admission.
___ I am an operator, administrator or employee of a hospital, clinic, nursing home, rest home, Soldiers Home or other facility defined in section 70E of chapter 111 of the General Laws of Massachusetts where the principal is presently a patient or resident or has applied for admission, and I am also related to the principal by blood, marriage, or adoption.
I have read this document carefully and accept the appointment.

_________________________________
Signature of Alternate Health Care Agent



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