NH Supreme Court Holds that a Guardian has Authority to Withdraw Life Support
Attorney Doreen Connor, representing Concord Hospital, appeared as amicus curia in a recent New Hampshire Supreme Court decision addressing the authority of a guardian to withdraw life support. The decision in In Re Guardianship of L.N is particularly important for estate planning and elder law attorneys who routinely assist with guardianships and the preparation of New Hampshire Advanced Directives. The Supreme Court considered, as a matter of first impression, whether a Guardian under RSA 464-A:25 has authority to terminate life support without Court approval. The Supreme Court’s decision not only settles the question of authority of a court-appointed guardian, but also highlights assisting clients with preparation of Advanced Directives that specifically authorize agents to remove life support when medically appropriate.
In Re Guardianship of L.N involved L.N., who was an active and independent 69-year old, suffered a serious stroke that resulted in her life being sustained by a ventilator and a nasal gastric tube for nutrition and hydration. L.N. did not have any living relatives who sought to serve as guardians and a close friend and a co-worker both petitioned for guardianship.
In considering the guardianship petitions, the Probate Court found beyond a reasonable doubt that L.N. was incapacitated and in need of a guardian over the person and the estate pursuant to RSA 464-A:9, III. The petitioners had requested a decision on whether the guardian should be granted authority to remove life-sustaining treatment from L.N. The Probate Court deferred the ruling for additional information. The evidence before the court was that L.N. did not show signs of “higher cortical functions, awareness”, and doctors testified that she did not have any realistic possibility of meaningful recovery. After further consideration of additional medical records, the Probate Court issued an order concluding that the authority granted by statute to a guardian does not “include the authority to remove a ward from life support without court approval.”
On appeal, the Supreme Court specifically considered whether the guardian had authority to withdraw life-sustaining treatment without court approval. The Supreme Court concluded that pursuant to RSA 464-A:25, a guardian of an incapacitated person had the powers and duties except for four specific powers: “psychosurgery, electric-convulsive therapy, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the probate court.” The Supreme Court determined that the Probate Court erred when it determined “the statutory authority granted to the guardian over the person. . . . does not include the authority to remove a ward from life support without Court approval.” The Supreme Court concluded that RSA 464-A:25, I(d) does not contemplate a separate and explicit authorization for this medical treatment or procedural issue. The guardianship statute simply means that once the court has found the ward incapacitated, the guardian has the general authority to make decisions.
The Supreme Court then examined whether the general authority included authority to terminate life support. The Supreme Court concluded that right was included within the general grant of authority. In making this determination, the Supreme Court considered situations whereby the individual executed an Advance Directive. The Supreme Court concluded that in situations where a ward had a valid living will under RSA 137-J, a “guardian shall be bound by the terms of such document, provided that the court may hold a hearing to interpret any ambiguity of such document. If a ward has previously executed a valid, durable power of attorney for health care, RSA 137-J shall apply.” RSA 464-A:25, I(e). The Supreme Court found it persuasive that the agent under a valid durable power of attorney was bound to the ward’s wishes. Consequently, the Supreme Court concluded that RSA 464-A:25, I(e) implies that the guardian has the authority to make decisions on behalf of the ward. For those reasons, the Supreme Court concluded the general power to give or withhold consent of medical treatment under RSA 464-A:25, I(d) includes the power to withdraw life-sustaining treatment in appropriate circumstances.
The Supreme Court also concluded that RSA 464-A:25 did not require a guardian seek prior court approval to authorize the withdrawal of life support. The Supreme Court noted that the legislature’s specific requirement that a guardian seek prior court approval for four specific types of treatment (psychosurgery, electro-convulsive therapy, sterilization or experimental treatment) “strongly indicates” that the legislature did not intend to require prior approval for the withdrawal of life support. The Supreme Court concluded that the award of guardianship would include the power to remove life support.
For practitioners who routinely practice in this area, the Supreme Court’s decision serves as an important to reminder to draft Advanced Directives and Living Wills that include clear authority to remove life support for clients who do not want their life sustained by medical technology. Furthermore, this case highlights the importance of estate planning practitioners in educating the public that individuals can easily complete a NH Advanced Directive and designate for themselves who should make health care and end of life decisions on their behalf. End of life decisions are deeply personal decisions that courts are ill-suited to determine.