Sarah E. Lavoie, Partner at Burns, Bryant, Cox, Rockefeller & Durkin Dover, NH

No. 2020-0368

September 18,  2020

Interlocutory Transfer

 

  • Without ruling, the trial court transferred the following questions: (1) Where a court, under RSA 464-A:25, II has specifically withheld authority under RSA 464-A:25, I(d) to withhold life sustaining treatment, what standard should be used to determine whether to authorize execution of a DNR by the guardian on behalf of the ward? and (2) Upon remand, does the Probate Division or the guardian apply the appropriate standard?  To put it another way, does the Court simply authorize the guardian to make the decision pursuant to a best interests/substituted judgment/other standard, or does the court apply the standard and direct the guardian whether she may or may not execute a DNR?

A petition for guardianship over the ward’s person and estate filed by the hospital was granted by the trial and a guardian was appointed.  In its order, the trial court preliminarily limited the guardian’s authority to execute either a DNR order or an order limiting life-sustaining treatment.  The guardian filed a motion for expedited hearing requesting that the limitations on her authority regarding the ward’s medical care be removed.  Without ruling, the trial court transferred questions which were then reframed and answered by the Court as follows:  (1)  When, pursuant to RSA 464-A:25, II, a court has preliminarily limited a guardian’s authority to withhold life-sustaining treatment pending further hearing, and then has conducted that further hearing, what standard should the court use to determine whether to reverse its initial decision?  By statute, the court may not limit the guardian’s authority to withhold life-sustaining treatment unless the court “deems such action desirable for the best interests of the ward.”  RSA 464-A:25, II.  (2) Assuming that the court reverses its initial decision, what standard should the guardian use to determine whether to withhold life-sustaining treatment from the ward, including executing a DNR Order on his behalf?  Should the court decide to remove the limitation on the guardian’s authority to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf, the standard governing the guardian’s decision is the “best interests” standard.  (3) Assuming the guardian decides to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf, and there is a dispute regarding that decision, under what standard should the trial court review the guardian’s decision?  The court reviews a guardian’s decision to withhold life-sustaining treatment form a ward, including executing a DNR order on his behalf, under a deferential standard.  (4)  Assuming that the court upholds its initial decision to limit the guardian’s authority, who then has the authority to decide whether to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf?  Should the court retain the current limitation on the guardian’s authority to withhold life-sustaining treatment from the ward, including executing a DNR order on his behalf, then the pertinent provisions of RSA Chapter 137-J apply.

 

Elliott, Jasper, Auten, Shklar & Ranson, of Newport (Alice C. Ranson and Michael C. Shklar on the brief), for the ward. Susan L. Regan, Guardian (filed no brief).