Even if a person has a guardian, certain decisions must be made by a judge, not the guardian. Collectively, these decisions are referred to as “extraordinary” authority. Those that we see most commonly are related to treatment with anti-psychotic medication (the so-called “Rogers” orders). But special authority is also required for, among others:
- Certain medical treatments involve especially invasive procedures.
- Admission to a nursing home or psychiatric facility
- Signing of DNR/DNI and MOLST forms
Sometimes, petitioners request extraordinary authority when filing for guardianship. Alternatively, the protected person’s needs may change over time, requiring an existing guardian to pursue an expansion of his/her authority from the court in response to those changes. In either case, the court will undergo the same process in considering the request for extraordinary authority.
1. Appointment of counsel.
Authorizing extraordinary intervention in a person’s life is a huge imposition of governmental authority into what is normally a person’s autonomous decision-making. As such, protected persons have the right to counsel. This applies in situations involving “extraordinary authority.” If the person is indigent, they will be appointed counsel from CPCS. It is important to understand that CPCS performance standards for their attorneys and obligations imposed by the Rules of Professional Conduct as they relate to representation of persons under a disability generally require that counsel oppose the expansion of authority unless it is very clear that the protected person’s stated preferences are consistent with the proposed intervention.
CPCS attorneys will generally always oppose the petition, at least through the process of obtaining an independent evaluation, particularly if this is a new guardianship and/or a new type of treatment. It can be helpful in terms of expectations to understand this as the process begins. Counsel for the protected person has a specific role/obligation in the process that they need to fulfill.
2. Court Determines Competency
The court must make a finding that the person is not competent to make this particular decision themselves.
Remember, the mere fact that someone refuses treatment does not mean he/she is not competent.
If the answer is no, the person is not competent to make the decision, then:
3. Court’s Role in Substituted Judgment
The court must engage in a “substituted judgment” determination, in which it has to decide what the person would have decided for themself, were they competent to do so.
The court remains the decision maker, and the role of the guardian and any other parties is to bring to the court the information necessary to make that decision. The court will consider the proposed treatment plan in light of factors such as:
- The expressed preferences of the protected person;
- His/her religious beliefs;
- The effect on his/her family;
- Side effects and alternatives to the proposed treatment;
- The consequences of refusal of treatment; and
- The protected person’s prognosis and anticipated length of incapacity.
In general, the court makes its determination from the perspective of the protected person.
4. Balancing State Interests and Substituted Judgment
In extreme circumstances, the court will consider whether “state interests” override the court’s own substituted judgment.
“State interests” come into play only following a determination that the incapacitated person would NOT consent to the proposed treatment plan. In general, situations that rise to the level of requiring an intervention the protected person would not want are those in which the person is a danger to him/herself or others.
However, even if state interests override the substituted judgment, the court must consider the least restrictive means to achieve the state interest, both in terms of methodology AND duration of the intervention.
5. The Court must approve a specific treatment plan.
The protected person’s medical providers should complete a proposed treatment plan. There is room for some flexibility in treatment plans. For example, it is generally prudent to include alternative medications in case one is not effective, and to include a possible range of doses. Doing so means that everyone doesn’t have to return to court for minor adjustments to the plan.
6. The Court must appoint a “Rogers Monitor” to monitor treatment.
Usually, the guardian is identified as the monitor. It is important to remember, however, that the monitor has no authority to request or refuse treatment outside the approved treatment plan. The monitor simply takes on the additional responsibility for monitoring treatment
and bringing information to court so the court can approve (or not) ongoing or a treatment change.
7. The Court must establish a schedule of review.
Frequently, the protected person will be under an indefinite treatment plan. In this circumstance (as compared to a time-limited treatment such as a surgery or signing a MOLST), the parties return to the court to re-approve/extend the treatment plan, usually for increments of six months or a year.